The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1900-05-30
The Telephone Cases.
JUDGE BUcHANAN's DscIs-
ION FILED.
Injunction Refused and the Re-
ceiver Asked for Not Appointed.

Judge Buchaoan's decision in the two cases
eotitled The Telephone Manufacturing Co. of
Sumter. plaintiffs, vs. The Sumter Telephone
Manufacturing Co. e, al, defendants, asd
Charles T. Mason ct al, plaintiffs, vs The
Telephone Manufacturing of Sumter ct al.
defendants, was fled with Clerk of Court
Nash las, Saturday. Judge Buchanan refuses
to appoint receiver for the Telephone Manu-
featuring Co., and be also refuses to grant 40
Injunction to prevent the new company from
using the name under which it wes chartered
viz, The Sumter Telephone Manufacturing
Co. Toe net result OF the litigation thus far
IS absolutely nothing Both companies con-
tiuue as they were before the suite were To-
stituted. The decision is as follows:
These matters came up on rule 10 show
cause, and the matters Involved we're heard
together In the last oamed case, the action
aud proceeding presents the rather unusual
feature of q complaint of certain alleged
stockholders agaioss the corporation and
three defendants, two Of whom are shown to
have been elected directors at the annual
meeting in June, 1889, when board OF four
directors was elected. The third the defend
an: Shelor Is alleged to have oeea elected
director at meeting of the board OF direc-
tors held on or about the ltth day or April,
1900, to fill what was claimed to be vacan-
cy on the BOARD, caused as claimed by the
fact .hst the p!aiatlff, .Manniog, who had
heretofore Cat the annual meeting IN 1882
been elected director. out traos;erred his
one share Of stock on the books OF the CON-
paaJ. The fourth director elected at the aa-
nuai meeting In 1899, was Charles T. Mason,
sc Mo
There vas good deal Of discussion in these
matters, taking wide and extended scope,
that would PROBABLY be more applicable to
the cause upon the trial of the merits than
upon this proceeding. Several novel ques-
t;ons we're presented by learGed counsel, all OF
whom presented their respective views, with
more than Ordinary ability and authority.
While think the act of 9th March, 1896,
and amendments, taken in connection With
sections 1899 to 1888, of revised statutes
1898, inclns,ve, clearly contempiates that
director shall be stockholder, l do not
think this matter is properly before me, for
The board is now full.
The board is certainly de facto board.
Cnder these circumstances csn the court of
equity inquire ioto the election and removal
OF cfi.ers or directors of private corpora
,ioo do not think 80. $50 the absence
of statutory provision, a court Of equity has
DO jurisdiction with regard to the election or
removal Of officers or directors Of private
corporation, and consequently cannot try the
validity Of their election or title to Office, in
proceedings instituted for that purpose,
Whistler os,ensibly or not, either at the suit
Of rival claimants out Of possession or ct ths
stockholders. Though when the question
arises incidentally and collatecaily IN a suit
of which it has lawful jurisdiction 90 other
grouods, if that decision be necessary to the
final disposition of the case" 5 An Il Eog
Dscis in Eq 57l, etc.
Who can say the purpose is not directly
here to try the right of certain persons to the
Office do not tbink Equity should interfere
BY iojuaction or receiversbip, under the Cir
cunsiances Shown here See Shunaa
Clark, New. 1873; Strange v. Board Of
Trade, s6 H., al; Owen Whitaker, 5
Nj Eq l22; Huyle.s v. Park, 20 N. H.,
5s; Bay!ess r. Owen, Freeuan's Chancery
Miss. iS1: Stockton T. An. Tob Co s5 n.
j. Eq., $50.
Zoe restraining order and the relief sought
hereio is refused.
Ia tie case Fret entitled. so injooction IS
souah, against the defendant upon 'heg7ound
tha. p!aiutifs name has oeen so closely lul-
,ated OF simulated that confusion has erlseo
IN the delivery and receipt Of the naii, and
great iujnry has been dooe plaintiff, &C.
When the Secretary CT State gave tie chsr-
ter Of Incorporation, tie State thereby ex-
nausted hef power so create any corporation
of tie same name given to the plaintiff nere!n,
aaG this applies Dot only TO the right TO issIe
a charter Of The identicaol pame and s:7ie
merely. but of the right 10 issue snd grant
charter with the nsne go simiis, as to be
reaeily mistaken as, or confooD0ed With, ,bs
name of the former creation. I; would be
mao;fas,ly improper to do so. The use OF
that nane by another corporation would
necessarily produce confusion aud enable the
later corporation to oota,u by reason CT the
similarity of names the business of the prior
one Whether actually inteuded or not, the
effec. OF it would be to work injury to tue
coe, by the latter one holding oct to the
puolic the personality OF the former A cor
poratioc is known by l,s came. 1t has a
property right in It's use It draws its exis-
reocs from the power Ct lis creation its
name is necessary element OF Its existence
1t scarcely need be said that snosequens
corporation has no right to appropriate the
name of prior ore, or name Sc nearly
similar as will prodace confusion or uncer-
,ainty concerning such rame or naturally
calculated to icjurioosly effect the idectity
and business of the prio, oue The necessary
cooseqrscce of the wrongful approprlst'ou
OF corporate name i. TO lojure the hosioess
and rights of the prior body.
think toe oyerwhelmlog weight OF al.
.hority shows :tst the naue iakeo by the
later corporation to be within the evil Of the
rule. ,hlnk The Sumie. Telephone anu
fac,uriog Company is a name too nsarl? tie
same as Telephone Manufacturing Company
of Sumter to prevent coofusion. 1t would
be wonder if coofusiou did Dot occar a
few authorities will show what the courts
have enjoiued as similar names:
See Holmes, Booth l. Hay deo Y The Ro!Ee5
Booth and Atwood Manufacturing Co, 81
Com, 27s: Q s Mercantile Reporting Co
Y. U S. Commercial Agency and COLLECTING
Co % N. Y. State Rep. 494
10 State " McGrath. 50 No 355, the
Kansas City Real Estate and Stock E1chaope
bad been Incorporated and maudamus was
sought 10 compel the issue Of certificate 10