Opinion
Opinion filed June 9, 1932.
1. APPEAL AND ERROR — propriety of joinder in error and necessity that errors be good as to all. Where parties join in assigning errors, the errors must be good as to all appellants or they will not be good as to any; if the errors complained of do not affect all of the appellants, the assignments of such errors must be several and not joint.
2. APPEAL AND ERROR — when joinder in assigning errors improper. In a mandamus action to compel the transfer of stock upon the books of a banking corporation brought against the bank, its officers and directors, in which all defendants except the bank and one director appealed, the president and cashier of the bank were not legally interested in the question of whether the court erred in overruling the demurrer of other parties to the petition, and such other parties were not legally interested in the question of whether the court erred in sustaining a demurrer to a plea filed by the bank, its president and cashier, and hence joint assignments of error by all of the appellants as to such alleged errors were improper.
3. CORPORATIONS — when formal tender of stock and demand not necessary to compel transfer of stock on books. Where officers of a banking corporation refused to comply with a request to transfer stock on the books of the corporation to one to whom it had been indorsed because of a certain contract between the previous owner and other shareholders, it was unnecessary for the indorsee to make a formal tender of the certificate and a further demand before bringing mandamus to compel a transfer on the books and the issuance of a new certificate, since it was apparent that such action would have been useless.
Appeal by defendants from the Circuit Court of Monroe county; the Hon. Louis BERNREUTER, Judge, presiding. Heard in this court at the February term, 1932. Affirmed. Opinion filed June 9, 1932.
WEIHL WEIHL and P. K. JOHNSON, for appellants.
FARMER KLINGEL, for appellee.
J. F. Burckhardt was the owner of a certificate for four shares of the capital stock of Commercial State Bank which he sold, indorsed and delivered to appellee. Appellee requested the officers of the bank to transfer the stock to him upon the books of the corporation and they refused to do so. He then filed a petition for mandamus against the bank, its officers and directors, to compel them to transfer the stock upon the books and to issue a new certificate. The directors demurred to the petition, the demurrer was overruled and they elected to stand by their demurrer. The bank, its president and cashier filed four pleas and later withdrew the first two. A demurrer was sustained to the fourth and they stood by that plea. The case was tried before the court without a jury upon the issue raised by the third plea which was to the effect that appellee did not deliver and return the certificate to the bank to be transferred and canceled and to have a new certificate issued.
The court found the issues in favor of appellee and awarded a writ of mandamus. The bank and one of its directors did not appeal. All of those who appealed have assigned errors jointly. Where parties join in assigning errors the errors must be good as to all appellants or they will not be good as to any, and if the errors complained of do not affect all of the appellants the assignments of such errors must be several and not joint. Hawkins v. County of Lake, 303 Ill. 624; Department of Public Works Buildings v. Epperson, 333 Ill. 313.
The president and cashier pleaded to the petition and are not legally interested in the question as to whether the court erred in overruling the demurrer of other parties to the petition. Such other parties are not legally interested in the question as to whether the court erred in sustaining the demurrer to the fourth plea which was a plea by the bank, its president and cashier. Those alleged errors are not properly assigned. We have considered them, however, and in our opinion they are without merit.
It is argued that the evidence is insufficient to support the judgment. It clearly appears that after the certificate was indorsed and delivered to appellee, he told the president and cashier of the bank that he had it and that he wanted it transferred on the books and a new certificate issued. They informed him that Mr. Burckhardt had signed a certain contract with other stockholders and they would not comply with his request. Under the circumstances it was unnecessary to make a formal tender of the certificate and a further demand. It is apparent that such action would have been useless. The refusal of the officers to make the transfer was not based upon the lack of a formal tender or demand and their attitude clearly indicated that the refusal was based upon an entirely different ground. We find no reversible error and the judgment is affirmed.
Affirmed.