Wildermuth v. Lorain Coal & Dock Co.

APPLICATION FOR REHEARING

No 3133. Decided May 23, 1940

BY THE COURT:

The above entitled cause is now being determined on defendants-appellees’ motion for rehearing.

There has been some delay in the determination of this application for rehearing due to the fact that the memoranda did not aecuinpany the application and when prepared was filed with the Clerk of Courts rather than mailed to the Judges as provided under *327Court Rule XI. As a result we did not receive the memoranda until Monday, May 20th.

For the purpose of being helpful in further litigation in our Court we call attention to the fact that application for rehearing is not provided for under the Code but solely under the Rules of Court. When it is desired to file application for rehearing the memoranda of authorities and argument should be ?part of the application and all prepared in triplicate and mailed to the Judges at their home addresses.

: The application in the instant case presents three specifications which we will take up in the same order.

1. “That the Court erred in holding that under the language of the pleadings no issue was presented on the question of reserved rights in the cor-, poration to amend the articles in the particulars set out in the pleadings.”

In the argument we find nothing but what was considered before the original opinion was released.

In this particular we adhere to our former opinion.

2. “That the Court erred in holding that the answer of the Lorain Coal & Dock Company, defendant-appellee, did not constitute a defense to the petion of the plaintiffs-appellants.”

Under this specification counsel for appellees again urge the second defense of the answer wherein, in substance, it was averred that if the plaintiffs are -permitted to maintain their action and the fair value of their shares be ordered paid by the corporation, the defendant would be unable to meet its obligations and would be disabled from performing its proper functions, all to the detriment of the defendant, its creditors and preferred stockholders. In further support of this second defense of the answer our attention is called to the case of Crimmins v Pierce et al v Kidder, Peabody Acceptance Corporation, et al (Mass.), 185 N. E. 383. The cited case .and the instant case are substantially different in their facts. In the instant case the pertinent section of the Code specifically provides the procedure to be followed in the event the corporation desires to carry its proposed amendment into effect. The only alternative would be to abandon its proposed amendment, or comply with the statute. The application for rehearing under specification No. 2 will be overruled.

3. “The Court erred in reversing and remanding this cause to the Court of Common Pleas with instructions to proceed to have the value of the stock of the plaintiffs-appellants determined without permitting the defendant-appellee to introduce testimony in support of the defenses sec forth in its answer.”

In effect, this third specification is attempting to raise the identical question as presented under the second specification. If the financial status of the defendant company is precarious, such situation would, no doubt, have a very material effect on the value of plaintiffs’ stock. If it is shown chat the total assets of tb* corporation would not be sufficient to pay its debts, then it naturally follows that the corporation stock has no value.

Under the provisions of the Code the «alue is to be determined uninfluenced by the prospective amendment to the articles.

The application for rehearing will be overruled.

HORNBECK, PJ., GEIGER & BARNES, JJ., concur.