The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1905-06-28
1,nTtTION FOR RB1IEARING.

George 70. Fisher anu AolIclo' s3t3 (.
PETITION FOR RB1lSA ll y
TO The Honorable Judges of the, Supreme
! Court Of Appeals OF Virginia j,
c5 xoqs pf a Davs G ana hp
Ires slf y. apply for a rehearing Of the
abovc-styied cause, in which an orG ,e.t
Tie dssre e,,d q tG 't on Tic l5
Your petitioners are satisfied that the
court IN the sonsd'Sraton o. ree ms has
failed 10 notice, or at least to appreciate,
some Of the material facts apparent y, ~, IN
the record and npon Tqe hose fact most
material TO the decision of this case. nave
been entirely overlooked or at least are
not referred to in the written opinion.
aned eont 1nno 70 the he contenon s Of
from was an appealnble order; second,
that the bill does not alleges slich q STATE
obtalnable through tho action Of the cor
poratlon, and that, therefore, these Pc
titioners, as stockholders. could not nam
tnin the suit ana frd co onh1 n 1ots ma
tain the suit for the reason that the
trustee in the deed Of trust referred to
III the proceedings, representeta t ne ga, az
except after request and refusal or the
trustees to institute tho same.
As to the first and third positions 81
great Difference, differing from the court,
do not wish to present any further argu-
ment but as to the SECOND point s ,oIwl,
state of facts as shows that redress was
not obtaina BILE through tho action Of the
corporation" wc desire to submit the foi-
lowing suggestions as the GROUNDS LOT
the rehearing prayed for:
laid EHe ae 1Se By sofR Re is States
G9uGt = MSe asse q paEes 4s
ss' aBut 'l perhaps the best assertion
OF the rule and Of tho exception to 1t
are found in the opinion Of the court by
vs.. Gardiner, in 1876, i Oh. Ply. 1s;.'I am
Of opinion. he says, that this demurrer
ought to be allowed. think, It Is OF
troversies that the rule which is well
known in this court as the rule in the
Motley vs.. Aston. and Lord VS.. Copper
Should always IVA: be- adhered to; that is to
say, that nothing connected with the
internal disputes between shareholders Is
one o. = ef e suo1s'i behalf OF Il himself
and others, unless there be something
illegal. oppressive or fraudulent; unless
there Is something ultra wires on the
so that they are notlt pc: sons to determin {
It. but that every litigation must be IN
really desires IT.: because there may be a
great many wrongs committed In a COM
spany,-there may be claims against d.
GERS; there may be CLAIMS against debt
ors; there may be variety Of claims
which a a, company may " well be entitled
right to make the subject OF litigation;
and an! !, 1t is the company as a com1pany;,
make ANYTHING I ha lis q hp
company a subject matter Of litigation,
or, whether itRwill take steps to prevent
the wrong from beng done.''' 5i
The same rule is laid down In the case
OF Dunphy VS.. The Travellers Newspaper
Association, LAG Mass. pages 497-S, which
is also relied upon by the court, which
ultra. wires or otherwise Illegal. tho COM
planning member must first seek his rem
edy within the corporations The only
must apply TO the directors, and also. II
need be- to the corporation. for redress
Of q wrong. done him. before. he can
on behalf Of other stockholders, is when n
It appears that such application would
he 1qn9Svailh,1Wg e PreteSSt his rShtS
REGT r rs rH nhKHM MshN NRH rR Rii
! WRONG DOORS OR ARE IN FRAUD
ULENT COMBINATION WITH THEM.
OR WHEN TIE CORPORATION rs
CONTROLLER BY THEM. or when it
y
too speedily to leave timo for a corporate
meeting Of the stockholders"
Gaps ourS.)
The rule, as so announced is not 1ues-
toned, but is insisted TINT the case
al bar Is the exception to the rule, which
is as distinctly marked and clearly rec
ognized as the rule itself. and appl. es
to all cases in which the allegat lions
ultra wires acts on the part Of a COM
pany acting through its directors, or that
there is u combination between the ma
jority stockholders or among the. direct
| property Of the compaiy, which they
had no right to ALLEVIATE. Or to gain for
themselves personal advantage at the e aa
The decisions from which the court has
quoted upon this point, and upon ! WI; en- en-
bnnphy Us. travellers; Newspaper Asso.'
clatien, 14s Mass, p, ,4s5 ct SEQ; Halves
cases the suit was Instituted to correct
what was an ntra wires act of the cor
poraton, and 1t was not case where
mitted as is the case here and IN each
Of those cases it is stated substantially
that where facts, are alleged which rem
dress can be gotten by application to the
company. such request need not be made
IL is true, lllul although LIe liCt DC ulll
| wires, yet In order to enable the stock.
| holder to intervene and bring suit, Il
| must appear that no has compiled with
! the rule, or that the situation Is such tina
! the rule does not apply; but we take II
1 that where the act Is ultra wires a much
| fuller statement CT the facts and crcunn
stances jusufyinE interposition Of the
court on the part Of stockholdsr wouls
be required than In a case where the
allegations Of the bill are that the acts
complained Of are ultra wires and re
dound to the personal interest of one o.
the directors himself, to the great detrl
ment and probable destruction OF the
| company. @TaHE II 4
regard Is not complained OF, but we lnsis
that this case comes within the we'll de
fined exception to the rule. and shows {
case where there is revealed such stat,
OF facts as would render futile any APP
pllcation to the board Of directors t.
correct tho wrongs complained Of; Tn
opiCon handed down comedies that !
was useless for the compliments to hay!
applied to the stockholders, for relief
but holds that the facts disclosed IN tn
bill DO not show that request to tn
directors would have been useless.
The court. In Its opinion. states tina
"the complainants do not alege who o
l., ~