Barnstead v. Empire Mining Co. — 5 Cal. 299

Majority

p. 299

THOMAS S. BARNSTEAD, Respondent, v. THE EMPIRE MINING COMPANY, Appellants.

Headnote

The right of a member of an incorporated company to sue the corporation is undoubted.

One partner cannot sue the other in an action at law. The remedy is by bill in equity for a dissolution and an account.

The Practice Act authorizes the Court to make an order directing a party to produce books and papers in Court.

Appeal from the District Court of the Tenth Judicial District, Nevada County.

Dibble & Thayer, for Appellants.

Conn, Dunn & Smith, for Respondent.

Bryan, J., and Heydenfeldt, J., concurred.

There is no ground in this case which seriously warrants an appeal. The right of a member of an incorporated company to sue the incorporation has never, to our knowledge, been doubted, and, in this very right consists one of the essential differences, between incorporations and mere partnerships; for in the latter, one partner cannot sue in an action at law, but must file his bill in equity for a dissolution and an account.

There was no error in excluding the defendants’ evidence; they were

p. 300

directly interested in the result of the judgment, and incompetent under the statute.

Much stress was laid in argument upon the order of the Court, directing the defendants to produce books and papers. The order was correct, and made upon the authority of the statute. The other objections are frivolous.

Judgment affirmed with costs.