The Wallace miner. [volume] (Wallace, Idaho) 1907-current, 1915-10-14

tIeulIOIS
and stockholders, but subject to the
obligations of this trust it is vested
with full proprietary power-neither
creditors nor stockholders have the
right to infringe upon its exclusive
possession. The plaintiffs, as stock
holders, have an equitable interest in.
or claim to, the property which, by
this suit, they seek to protect against
what they conceive to be an jmpend-
ing danger arising out of the alleged
inability or incompetency of the cor
poration to discharge the duties OF its
trust. They do not sue upon behalf
iof the corporation or all other stock
holders, but they bring the action in
their own right, and thereby seek to
! change the status of the property.
They would Wrest it from its present
possession and control, where the ma
jority of the stockholders have chosen
| to put it, and place the management
thereof in other hands. It is as if the
beneficial ownership of real estate, the
title to which, and the right to its
management and control, were vested
in a trustee for certain purposes
came into court alleging the incom
potency of the trustee and prayed for
his discharge and the appointment of
another in his place THE interests of
the corporation are adverse to those
of the plaintiffs. The issue between
them involves the status of property
within this district The corporation
claims the right to remain in the pos
session and control, and this claim the
plaintiffs Directly challenge. To be
sure, the source and nature of the
plaintiffs interests in the property are
probably not in issue, but that fact is
not controlling Upon the basis of
their conceded interest they base c
claim which is not conceded, namely
the claim that they have right to
take the property out of the defend
lant's hands. And that is a claim to
property in the district, which by the
suit they are attempting to enforce
The effect which the granting of the
relief prayed for would have been up
on the defendants relation to the pro-
perty can not be ignored The plain
tiffs would take the property from the
corporation as now organized, for an
the hands of a receiver, and ultimately
turn it over to the corporation differ
emily organized The remedies or
Imandamus, replevin and ejectment
could not effect a more complete
change of possession than that here
sought. 1t is true the plaintiffs the
ory of the nature of the action is not
entirely clear, and in a possible view
which may be taken the receivership
can be regarded as furnishing only
provisional remedy. But it is conced-
ed to be doubtful whether the state
court has the power to inquire into o,
determine the controversy between
the contendng groups of directors,
and therefore one branch of the pray
er is that the property be kept in the
custody of a receiver until that issue
can be adjudicated by some compe-
tent tribunal Having regard only for
that branch of the relief sought, the
ultimate and indeed the sole purpose
Of the suit would be to oust the de-
lfendant of possession. Change of
possession through the receivership
would not be merely provisional
remedy, for such change would be the
ultimate as we'll as the intermediate
purpose and effect Of the suit. And
lin considering the jurisdictional as
pect of a suit the maximum relief
prayed for and not the minimum, is
to be taken as the criterion"
In conclusion Judge DIETRICH says:
Notwithstanding my first impress
sion to the contrary, and natural re-
Iluctance to adopt view out of har-
mony with that of the state court,
lupon reflection the conviction has
grown upon me that the issue be-
tween the plaintiffs and the defend
ant company involves a claim to pro-
perty in the district, and that there
fore the objection to the venue is not
well taken, and a restraining order
should issue as prayed for. The ques-
| tion is not free from great perplexity.
land If there are considerations which
to the respondents, may seem to have
been overlooked by me, they may be
urged upon a motion to remand.
perhaps it should be added that J
have not been able to see the pertin-
ency of those portions of the complaint
| in which it is charged that The Met
lals company has exercised an undue
Influence over the directors of the
mining company. 1t is alleged that
certain contracts entered into were.
from the standpoint Of the mining
company improvident If not fraudu-
llent but no relief is sought upon this
head. The Metals company Is not
made a party. and besides the plain
tiFs pray that the receiver to be ap-
pointed be directed to abide by and
perform the company's contracts