Hiller v. Collins
Synopsis
Appeal from, an order of the Superior Court of the city and county of San Francisco, refusing to dissolve an injunction.
The action was brought by the plaintiff as a stockholder of the Equitable Tunnel and Mining Company, a corporation, to enjoin a sale of his stock under an assessment levied by the directors, and to declare certain shares of stock claimed by one of the defendants to be the property of the corporation, and to enjoin the sale thereof and their transfer on the books of the company. An injunction was granted in accordance with the prayer of the complaint. The defendants filed an answer, and thereupon gave notice of a motion to dissolve the injunction on the pleadings. An amendment was subsequently made to the complaint, but it was filed on the hearing of the motion, and seems to have been used merely as an affidavit. Several affidavits were used by the plaintiff in opposing the motion. In the portion' of thé answer referred to in the opinion of the court as charging a fraudulent attempt by the plaintiff to acquire the property of the company, it was alleged in substance that the property had been sold under an execution against the company to one French, that the purchase was made by French for the benefit of the plaintiff, and that the money to make it was furnished by the latter through his wife; that the assessment was levied to obtain the means to redeem the property, that the company was destitute of money, and that the action was not j>rosecuted in good faith, but to prevent a redemption. The allegations as to the money for the purchase being furnished by the plaintiff, and his motive in bringing the action, were on information and belief. The additional facts involved in the questions decided sufficiently appear in the opinion of the court.
Opinion
Per Curiam. Defendants moved the court below to dissolve an injunction. The motion was submitted upon the [237]original complaint and amendment thereto, the answer, and certain affidavits filed and used by plaintiff. The motion was denied, and this appeal is by defendants from the order denying the motion.
Appellants claim : 1. If the averments in the complaint and amendment thereto are true, plaintiff has a complete remedy at law by prosecuting some of defendants for a criminal offense.
2. That the injunction ought to have been dissolved, because some of the allegations of the complaint are “upon information and belief.”
3. That the equities of the complaint are denied by the answer.
It is also' suggested that it appears from the allegations of the answer the process of the court is being abused by the plaintiff for the purpose of preventing the redemption by the corporation, of property sold under judgment against the corporation, at a sale at which plaintiff became the real purchaser, in the name of another, plaintiff thus intending to defraud the corporation of such property.
1. A criminal prosecution, in which the people would be plaintiff, would not be subject to the control of present plaintiff, nor ivould its success give plaintiff the relief Avhich he seeks, or its equivalent.
2. Some of the averments of the complaint, “ upon information and belief,” are not denied by the ansAver; others Avere sustained by positive affidavits at the hearing. Assuming the allegations Avhich are not denied by the ansAver, those which are themselves positive, and those sustained by positive averments in affidavits to be true, we cannot say the court below abused its. discretion in refusing to dissolve the injunction.
3. All the equities of the complaint are not denied by the ansAver. "With reference to such of them as are denied by the . ansAver, it seems to be the established practice in this State to permit the use by plaintiff of affidavits against the SAVorn answer, which, on the application to dissolve, is treated as an affidavit. (Falkinburg v. Lucy, 35 Cal. 52; Hicks v. Compton, 18 Cal. 206.)
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