Schofield v. Doray

California Supreme Court

Schofield v. Doray

26 P. 606, 89 Cal. 55, 1891 Cal. LEXIS 769

CourtCalifornia Supreme Court

DecidedMay 7, 1891

DocketNo. 13656

StatusPublished

Cited by2 cases

This text of 26 P. 606 (Schofield v. Doray) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schofield v. Doray, 26 P. 606, 89 Cal. 55, 1891 Cal. LEXIS 769 (Cal. 1891).

Pincite

Opinion

Belcher, C.

— This case is similar in character to that of Chapman v. Doray, ante, p. 52, just decided. The pleadings are the same, except that the penalty sought to be recovered here was for the failure to make and post, on the first Monday of August, 1889, the reports and accounts current for the previous month, while the failures alleged in Chapman v. Doray, ante, p. 52, were for the months of January to July, inclusive, for the same year. Judgment in both cases was rendered on the same day, and the proceedings up to judgment were similar. In this case, after judgment had been rendered in Chapman v. Doray, ante, p. 52, and before judgment herein, the defendant asked leave of the court to file an amended answer, to enable him to plead the recovery and judgment in the other case as a bar to a recovery here. The court denied the motion, and the defendant excepted. Judgment was then entered, from which the defendant appeals on a bill of exceptions.

The same points are made here for a reversal of the judgment as were made in Chapman v. Doray, ante, p. 52; and on the authority of the decision in that case they must be overruled.

It is further urged that the court erred in denying the defendant’s application to amend his answer. We see [57]*57no error in this ruling. The proposed answer would have presented no defense. Each failure is a delinquency for which an action may be maintained. It is true than when the stockholders forbear to sue till after several failures have occurred, only one penalty can be recovered up to the time such forbearance ceases and the suit is brought. (Loveland v. Garner, 71 Cal. 541.) But an action may be maintained for such delinquency as it occurs.

We advise that the judgment be affirmed.

Foote, C., and Vancliee, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.

Rehearing denied.

Free access — add to your briefcase to read the full text and ask questions with AI

Belcher, C.

— This case is similar in character to that of Chapman v. Doray, ante, p. 52, just decided. The pleadings are the same, except that the penalty sought to be recovered here was for the failure to make and post, on the first Monday of August, 1889, the reports and accounts current for the previous month, while the failures alleged in Chapman v. Doray, ante, p. 52, were for the months of January to July, inclusive, for the same year. Judgment in both cases was rendered on the same day, and the proceedings up to judgment were similar. In this case, after judgment had been rendered in Chapman v. Doray, ante, p. 52, and before judgment herein, the defendant asked leave of the court to file an amended answer, to enable him to plead the recovery and judgment in the other case as a bar to a recovery here. The court denied the motion, and the defendant excepted. Judgment was then entered, from which the defendant appeals on a bill of exceptions.

The same points are made here for a reversal of the judgment as were made in Chapman v. Doray, ante, p. 52; and on the authority of the decision in that case they must be overruled.

It is further urged that the court erred in denying the defendant’s application to amend his answer. We see [57]*57no error in this ruling. The proposed answer would have presented no defense. Each failure is a delinquency for which an action may be maintained. It is true than when the stockholders forbear to sue till after several failures have occurred, only one penalty can be recovered up to the time such forbearance ceases and the suit is brought. (Loveland v. Garner, 71 Cal. 541.) But an action may be maintained for such delinquency as it occurs.

We advise that the judgment be affirmed.

Foote, C., and Vancliee, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment is affirmed.

Rehearing denied.

Cite This Page — Counsel Stack

Bluebook (online)

26 P. 606, 89 Cal. 55, 1891 Cal. LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schofield-v-doray-cal-1891.

Opinion

Related

Cite This Page — Counsel Stack