In re Free Gold Mining & Milling Co. , 2 F. Supp. 118 ( 1933 )

BOURQUES, District Judge.

The petitioner to vacate the adjudication that the corporation is a voluntary bankrupt is its president and a director and stockholder. It appears that a majority of the directors having illegally assumed to remove petitioner and another from the board, also likewise assumed in special meeting' convened without notice and at which petitioner was not present, to authorize the proceeding in bankruptcy.

The preliminaries invalid, and of this Montana corporation not the directors but stockholders only having power to authorize bankruptcy proceedings (In re Crystal Ice Co. (D. C.) 283 F. 1007, 1010, and compare General S. S. Corp. v. Astoria Overseas Corp. (C. C. A.) 294 F. 861), it is clear the adjudication was inadvertently, by mistake, and erroneously made. Accordingly, timely application in tho nature of intervention by one interested as a stockholder, to vacate the decree which otherwise operates to his injury, to that of the corporation, and to others not before the court, is appropriate procedure to defeat breach of trust, ultra vires acts, abuse •of judicial power, and failure of justice. And in the circumstances the petitioner is not obliged to first seek redress within the corporation. The petition is granted. Order accordingly.