Corcoran v. Sonora Mining & Milling Co. , 8 Idaho 651 ( 1902 )

ON REHEARING.

Per CHBIAM.

— The interesting petition for a rehearing filed by respondents has been carefully considered. Bespondents insist that a rehearing should be granted upon the ground that appellant did not make and keep good a tender to the respondents, as required by section 2630 of the Bevised Statutes. This question was not raised at the hearing, and, upon the record as presented to this court, we think it was waived, and intended to be waived, so far as this appeal is concerned; hence a rehearing should not be granted on this ground.

As to the second point urged in the petition, we think that the erroneous sustaining of the demurrer to the original complaint, requiring the appellant to plead matters which it was unnecessary to plead, while not of itself sufficient to authorize a re■versal of the judgment, yet, as other errors require a reversal, this court should pass upon the action of the court in sustaining such demurrer.

The trial court permitted respondents to introduce parol evidence to show that necessary steps, under the statute, had been taken by the respondent corporation in the matter of the assessment and sale of the stock in question. The statute requiring the corporation to keep a record of its proceedings intends that the substance of all of its proceedings should appear of record. In ease of the levy of an assessment by a corporation, and proceedings to sell stock on account of delinquency in paying such assessment, the proceeding is a special, summary one, by which citizens are deprived of their .property; and, in order to make the sale valid, all of the requirements of the statute' must be substantially complied with. The principle enunciated in this case is one relating to the proceedings on the part of the corporation whereby assessments are levied, and the stock of the stockholders sought to be sold thereunder. Inasmuch as boards of directors act by resolution, and the statute requires them to keep a record of their proceedings, we do not see how it can well be contended that a resolution levying an assessment need not be recorded in the record-book of the corporation; and we do not think that a mere recital of the fact that such assessment was levied — a conclusion of fact — can bo held to answer the requirements of the statute.

A rehearing is denied.