Petition for rehearing denied February 11, 1941 ON PETITION FOR REHEARING (109 P.2d 1044) Extensive assignments of error are contained in a petition by plaintiff for a rehearing. With two exceptions the same matter, which is contained in this petition, was presented upon the hearing of the case. These two exceptions refer to the affidavits of Marcella McCullough and a reference by the writer hereof to one of such affidavits in the opinion of the court; and to a petition of defendant, Hanley, to withdraw from this proceeding on appeal herein.
In plaintiff's petition for rehearing, attention is called to the fact that the McCullough affidavits were not received in evidence when this case was heard on the merits in the circuit court. The record of the trial of this case upon the merits was made up in part by *Page 705 the introduction of all the oral testimony given upon an application for the appointment of a receiver. When that application was heard, the two affidavits made by Miss McCullough were introduced by defendants, received in evidence and marked exhibits G and H.
Immediately upon their introduction, plaintiff called T.M. Gerety to the witness stand and the following questions were propounded to Mr. Gerety and the following answers made by him.
"Questions by Mr. A.E. Reames:
Q. Mr. Gerety, I have before me the affidavit of Marcella McCullough, to the effect that about the 12th of May, '39, she talked with you and you informed her that the stock owned by the plaintiff Horner in the corporation, representing twenty per cent of the total authorized issue, could be purchased for Fifteen Thousand ($15,000.00) Dollars. I will ask you whether or not you stated that to her or words to that effect?
A. No, I didn't.
Q. It is also alleged in this affidavit that a few days later and toward the middle of May, 1939, you discussed with her the subject and said that you likewise desired to dispose of your stock in the corporation, which was seven and one-half per cent of the authorized stock outstanding for the sum of Three Thousand ($3,000.00) Dollars.
A. No, I said Ten Thousand.
Q. That about the first day of — There is no reference to a conversation in here with Mr. Horner. There is another affidavit made by the same party and on the same day — the 21st day of November, in which Miss Marcella McCullough says that in the latter days of June in '39 she, in company with her sister, had a conversation with you and that you were at that time acting as dredge master on the dredge. Did you act as dredge master?
A. I was superintendent. *Page 706
Q. Were you ever dredge master?
A. No.
Q. And that inasmuch as she was contemplating the purchase of stock in the company she was naturally interested in its recoveries and so forth. These matters were discussed on said occasion with the said Garrity who stated, in substance and effect, that the operations were losing from 5 to 10 cents per cubic yard of the fine gold because they were not equipped with a trommel; and that I thereupon inquired of the said Garrity if it would not be advisable to install a trommel which it was suggested would cost approximately $20,000, to which suggestion he responded in substance and effect that the company was operating at a profit at that time and there would be no occasion to lay out this additional sum of money for a saving of 5 and 10 cents per yard in fine gold. Did you have any such conversation?
A. I remember having a conversation with her and her sister. I don't remember saying the average loss was about two cents a cubic yard.
Q. Is that what you thought it to be?
A. That was estimating what I thought would be the average loss in tailings.
Q. (Reading from Ex. `G':)
`He also stated in substance and effect that the water available for these operations was at that time so heavily impregnated with silts and slime from the operation that it should not be continued beyond about the 1st of July; that even at the time the water was too thick with silts to accomplish an efficient recovery or to justify continued operations, but that it should be shut down until clearer water was available.'
Q. Did you have that conversation with her?
A. No, I never put any definite date when the water would run out, because I didn't know.
Q. How about the water being too thick to make an efficient recovery? Did you tell her that?
A. No." *Page 707
To the extent shown by the above quoted questions and answers the contents of the affidavits of Miss McCullough are in the record. Correction is therefore made in the writer's opinion herein by deleting from his statement of the contents of said affidavits the following phrases:
"that this caused her to wire Most for a report as to the value of the stock so offered and whether there would be any objection to her becoming thus associated with the corporation; that she was and is amply financed to handle such a transaction; that she acted entirely in her own interest and that she was not directly or indirectly employed by Most and Hanley to secure the Horner stock in their interest and behalf."
This deletion does not affect the conclusion given in the original opinion that such a fraudulent conspiracy as to warrant the interposition of the court in the management and control of the corporation defendant has not been shown to have been entered into by defendants Hanley and Most.
On the 20th day of January, 1941, defendant E.B. Hanley, Sr. filed herein a petition to dismiss his appeal. This petition is accompanied by the following affidavit: (Omitting the title of the case.)
"State of Washington | ss County of King |
E.B. Hanley, Sr., being first duly sworn on oath deposes and says: That subsequent to the argument of this cause and the submission thereof by counsel he has learned of the hostile and incompatible conduct as a trustee of Joe E. Most, one of the other appellants in this cause, and that the said voting trust agreement, one of the issues in the cause, was secured by the said Most from affiant for his own private gain and not for the welfare of this affiant or his family, and affiant does not wish to further be associated with the said *Page 708 Most in prosecuting this appeal and desires to withdraw forthwith so that he may be free to take whatever future action he may deem for his best interests. Any requests or action on his behalf by his former attorneys are hereby withdrawn.
E.B. Hanley Sr.
The foregoing affidavit was carefully read to the said E.B. Hanley Sr. and he subscribed the same and swore on oath that the same was true on this 17th day of January, 1941.
V.N. Wohlgenant Notary Public in and for the State of Washington, residing at Seattle.
(Seal)
My Commission Expires May 4, 1943."
We are aware of the rule that in a case of joint appeal, any of several parties, who have instituted the proceeding, acting seasonably, may dismiss as to themselves and leave the remaining appellants to prosecute the appeal; but we think that this right to dismiss an appeal should not be extended beyond the period prescribed by statute as follows:
"At any time before the hearing or trial, the court, on motion of the appellant, may dismiss the appeal." Section 10-809, Vol. 2, p. 249, O.C.L.A.
The motion of plaintiff for a rehearing is denied.
The petition of defendant, Hanley, to dismiss the appeal as to him, is also denied without prejudice, however, to the future institution and prosecution of any appropriate suit, action or proceeding to test the validity of the voting trust agreement mentioned in the foregoing affidavit of said defendant Hanley.
BAILEY and LUSK, JJ., concur in result.
BEAN, J., not sitting.
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