Opinion
Appeal from the Fifth District.
Plaintiff sues to recover an interest in a mining claim, alleging ownership since 1855, and an expenditure of $ 1,200 in working and carrying on the same; that defendants are in the exclusive possession, etc., and prays that the right to said interest be determined and he have restitution.
The answer denies that plaintiff was the owner of the interest set forth at the time of the commencement of the suit, or that he was or is entitled to the possession. Denies that at the commencement of the suit defendants were in possession of the claim or interest, or have refused to allow plaintiff to take possession, etc.
It seems that the plaintiff and others, who were owners in the claim in the fall of 1858, formed themselves into a corporation under the Act of 1853. The claim was divided into twenty-one shares, which was represented in the articles of incorporation at one hundred dollars each. In the spring and summer of 1859, the corporation levied assessments upon different shares to defray the expenses of working the claim. Plaintiff's assessment being unpaid, the share was sold at auction after advertisement in a paper, and H. B. Wade, a member of the company, became the purchaser. After that time the company refused to recognize plaintiff as having any interest in the corporation. Other facts appear in the opinion of the Court. Defendants had judgment. Plaintiff appeals.
COUNSEL:
L. Quint, for Appellant.
H. P. Barber, for Respondent.
JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
OPINION
COPE, Judge
The plaintiff has mistaken his remedy. If his stock has been improperly sold, he may maintain an action for its recovery, but he cannot sue the corporation for a specific interest in the corporate property. It appears that he was one of the original corporators, and that the property in question has been held as corporate property from the time the corporation was formed. Under these circumstances he should not, we think, be permitted to question the title of the corporation, particularly as the property is a mining claim and could only be held by occupation and possession.
This view is decisive of the case, and the judgment is affirmed.