Bank of National City v. Johnston
Before: Harrison
Synopsis
Corporation—Meetings of Directors—Notice.—Where, in the absence of by-laws fixing the times for meetings of directors of a corporation, all of the directors, being duly assembled, agree to adjourn to a date and hour named, a meeting held by a majority of the directors at the time thus fixed is a legal meeting of the board, though no personal notice of the meeting is given to each director; and the acts of such meeting will be valid, under Civil Code, section 308, providing that every decision of a majority of the directors, made when duly assembled, is valid as a corporate act.
Corporation—Adjourned Meeting of Directors—Assessments.— In the absence of any limitation imposed by statute or the articles of incorporation or by-laws of a corporation, requiring the object of .a special meeting to be stated in the notice therefor, a board of directors, duly assembled at an adjourned meeting, may resolve to proceed by action for the collection of an assessment upon stock, as provided in Civil Code, section 349, where the resolution levying the assessment fixed a day when unpaid assessments would become delinquent, and the time for payment has expired.
Appeal.—Where Defendant Answers Over After Demurrer to the Complaint is overruled, and no appeal is taken, he cannot; on the appeal of plaintiff from a judgment in defendant’s favor, insist upon affirmance upon the ground that his demurrer should have been sustained.
HARRISON, J. The plaintiff seeks by this action to recover the amount of an assessment upon certain shares of its capital stock held by the defendant. The resolution levying the assessment was adopted September 8, 189-6, and it fixed October 30th as the day on which unpaid assessments should [419]be delinquent, and November 25th as the day for the sale of delinquent stock. The only issue presented by the answer is upon the allegation in the complaint that the plaintiff elected, by virtue of section 349 of the Civil Code, to proceed to recover the assessment by action. Judgment was rendered in favor of the defendant, from which, and from an order denying a new trial, the plaintiff has appealed.
It was shown at the trial that at a meeting of the stockholders in 1888 certain by-laws were unanimously adopted, and that the minutes of this meeting containing said by-laws were copied into a book labeled on its back, “Record—The Bank of National City,” and kept in the office of the corporation, but that the by-laws were not otherwise certified to by any officer, or copied into any other book; that said book has since that date been used for the record of the permanent minutes of the meetings of the stockholders and of the board of directors of the corporation; and that the record of said by-laws in said minutes has always been regarded by the stockholders and officers of the bank as the only book of bylaws thereof. One of these by-laws provides, “A stated meeting of the board of directors shall be held on the second Tuesday of each month at the bank, at such hour as may be designated by the president.” In May, 1888, the board of directors adopted a resolution that its regular monthly meeting should be held on the second Tuesday of each month, at 10 o ’clock A. M.; and since that time all the meetings of the board have been, by usage and custom, convened at that hour, unless a different hour for any particular meeting was specially appointed. The minutes of the board of directors of October 13th, which was the second Tuesday of that month, recited that a regular meeting was held that day, at which five directors were present, and that after transacting certain business the meeting adjourned for one week. The minutes also show that on October 20th an adjourned' meeting of the board of directors was held, at which all of the directors were present, and at the close of its business it adjourned for one week; that on October 27th an adjourned meeting of the board was held, at which all of the directors were present; and that at its close it “adjourned to next Saturday, October 31st, at 9 o’clock A. M.” The minutes of October 31st recite: “At an adjourned meeting of the board of directors of the Bank of National City held this day there were present”
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