Scott v. Flint River Pecan Co. , 1925 Ga. LEXIS 36 ( 1925 )

ON MOTION ROS REHEARING.

The plaintiffs in error ask for a rehearing, stating that they have no objection to the intervention asking that parties be made to the litigation, but that they do object to the order allowing the parties to become parties defendant for the purpose of asking for damages in the sum of $100,000. The ruling made on the allowance of the intervention is not susceptible of that construction. The judgment of the trial court, of which the bill of exceptions complains, did nothing more than to allow the intervenors to be made parties; and in no sense did the judge deal with the demurrer which attacked that part of the intervention asking for damages, or for any relief not germane to the original pleadings. That is true because the appearance term of the suit had not arrived, and the court could not and did not deal with the demurrer as such, and did not undertake to do so; and therefore this court did not deal with the demurrer, and that question is still open for the trial judge.

The defendants in error moved for a rehearing on two grounds. First. That the court has overlooked Civil Code of 1910, § 4538, and the two decisions of Board of Education v. Felder, 116 Ga. 788 (43 §. E. 56), and McCaskill v. Bower, 126 Ga. 341 (54 S. E. 942), which they contend are controlling authority to the effect that mandamus lies as an adequate remedy to enforce a stockholder’s right to examine the books of a private corporation. This question was thoroughly considered when the case was decided and no new light is thrown upon the question in the motion for rehearing. The second ground of the motion for rehearing is that the court overlooked the decisions of Fender v. Shaw, 135 Ga. 224 (69 S. E. 110), and Peek v. McKinney, 135 Ga. 430 (69 S. E. 574), which they contend are controlling as authority to the effect that the judgment rendered by this court is an adjudication that the trial judge was authorized at an interlocutory hearing to grant final relief. The ruling of this court was that “the stockholders have the right to examine the books of the corporation under reasonable regulations,” and the evidence showed that they were denied this right, and therefore that the injunction for this reason should have been granted. By this it was meant that the court should have granted the temporary injunction until further order of the court. This is intended in no sense as a judgment granting final relief. Moreover, the inspection of the minutes is a mere incident to the final relief sought by the petitioners; and if it is determined on the final trial that an inspection of the books of the company is sought for motives other than those prescribed by law, and pointed out in the opinion, it is to be assumed that the right will be denied.

Eor these reasons both motions for rehearing are denied.

On the motion for rehearing Hines,JJ., dissents from the judgment of reversal.