The Montgomery advertiser., 1906-06-15

.s....s........ is not indispensable: the action may be maintainable without showing any notice, request or demand to the man aging body. or any actual refusal py them to prosecute; in other words the refusal may be virtual. If the facts as alleged show that the defendants charged with the wrong doing, or some of them, constitute q majority of the of commencing the suit. or that the directors or a majority thereof are still under the control of the wrong doing defendants. so that a refusal Of the a suit in the name of the corporation. may be inferred with reasonable cer- tainty, then an action by a stockholder may be maintained without alleging or | proving any notice. request. demand, | or express refusal In like manner, if 1 the plaintiff's pleading discloses any it reasonably certain that a suit. by the corporation would be impossible. and that a demand therefor would be | nugatory. the action. may be main
 part of the stockholder plaintiff. No Change of Courts.
 Tt therefore appears that when the suit is brought. whether by directors or a stockholder 1t is maintained di-
 rectly for the benefit of the corpora | tion, and simply to set in motion the
 judicial machinery of the court and | when that machinery has been set in
 motion. the court which acquires ju.- l risdiction of the subject-matter and
 of the parties. should be permitted to determine all questions Involved. The | corporation being the interested party, | all parties interested are before the
 court by representative, whether the
 suit Is instituted by the directors or | a minority stockholder, and the fact
 that the stockholders were not named
 as actual parties to the Jefferson Coun- | ty Chancery suit. does not prevent said
 subject matter, and of the proper par
 the two companies. The Jurisdiction i was invoked upon the demand of Gray and he cannot now be permitted to re-
 strain the proceedings in the first court by an injunction from another court of coordinate Jurisdiction.
 The complainant seeks to avoid the effect of the institution of the suit. by l the directors, by averring that they made simulated compliance with his demand and that they ,;t,,aa are unfit Per. Per filing of the bill was an actual com pliance with his demand in that re- spect and was enough to set in motion the machinery of the Chancery Court of Jefferson County.
 The unfitness of the directors to manage and conduct the suit does not affect the Jurisdiction invoked by them upon this complainants demand. If they were unfit to bring the Louisville & Nashville Railroad Company to proper accounting, the complainant without having first made the demand on them to file the bill; but he made the demand and in compliance there ing In the Jefferson chancery Court and their unftness to conduct the lit- igation is no good ground for trans ferring the controversy to another fOr xarff m one first acquiring Jurisdiction.
 If the directors will not prosecute the Jefferson County case in good faith, the complainant and other stoekhold- CTS should be permitted to. intervene upon making a proper showing to the Chancellor; as the Chancery Court of must seek protection and not by an court c Of Montgomery. Is cyc. Soi; Fosters, Fed Pro p. s ssc; , Sec 2ol; on Modern Ed; ,Proced;, 574; Ginderson V, Railroad. 8 Bliss; lss; Doooke V. Will Hams. 34 So. Rep. (Fla) 569.
 The complainant belongs to the ex cepted class mentioned in the Printupp case, S7 Ala. 14s. and would have the upon making. the proper showing;
 Courts of coordinate Jurisdiction can restrain the enforcement of de- crees rendered in other courts upon  dictions they have restrained proceed ings in other courts of equal powers, but the latter instances fall within the Pomeroy: The reasons for attacking and setting aside a decree already ob- tained on account of fraud do not nec- the litigation while pending in anoth- CT court having full power to deal with all equities which may arise. we speak of 1t, not as a power usually to be exercised but as one beyond Juris- dicton of the court
 Reference to Cit0tIOns.
 The case cited by counsel for appel lees are not at all m conflict with the foregoing views. The Coliseum case, 12S Ala, 5l2, Is simply a short opinion toS,Ermine the case of Ala. Bank Ns. Mary Lee Co, 10S Ala, 2SS, which said last ease holds that court Of equity has the right to cancel de'ree fraud ulently and collusively procured in court of equity For ought we know the first decree may have been rend- cred by the City Court. the same eoVrt in which the bill was filed. Put we do not mean to hold that one court of equity cannot cancel Judg- ment or decree or restrain the enforcement thereof. which was fraud uleatly rendered by another corut of CO., ordinate jurisdiction. Indeed. we en- deavored to draw a distinction in the foregoing opinion between the right of one court to restrain the enforcement of A judgment or decree of another court. ani of ,strainins the proceed ing in a court Of coordinate jurisdie- ton Nor is the case of Ball Vs, Mcnt- gomery Light Co. l0S Ala, 275, In con fllct, in the slightest, with this opinion. That case simply holds that a stock holder can. upon certain conditions, dis pense with making a demand upon the aoverning board to sue, which point has frequently bcen enunciated by this and other courts, but which has no Np- plieation to the ease at bar The com plainant does not go upon tho theory | that The demand Has useless, hut made 1 the demand and after procuring the fil -