Mussina v. Goldthwaite

Citations

• 34 Tex. 125

Syllabus

<p>I. An intervene» who claims an interest in the subject matter of the suit may, by leave of the court, interpose his claim as a defendant, for .the protection of his interests ; and if there be fraud or collusion between the original parties to the suit, whereby his interests may be prejudiced., he may allege and prove it, and thereby frustrate any fraudulent purpose designed to be effectuated by the suit.</p> <p>8. An individual stockholder in a corporation may maintain an equitable action against the directors, for misconduct in offiee, when the corporation itself is unable or, through fraud or collusion, omits to sue; and when the directors are charged with fraud, it is not necessary for the stockholder to apply to them for the use of the corporate name in bringing the suit.</p> <p>3. If a party states facts in his pleadings, from which, if proved, the court must infer fraud as a legal sequence, it is not necessary that he should specifically charge fraud.</p> <p>4. In a suit to foreclose a mortgage given by a stock company to secure certain of its bonds, there was a judgment by default taken against the company, an intervention of an individual stockholder, who denied the validity of the bonds, and charged collusion between the plaintiff and the officers of the company, and a jury empanneled to try the issues between the plaintiff and the intervenor, and also as a jury of inquiry upon the default taken against the company. The verdict was that “ we the jury find the material allegations in the petition true;” and the court thereupon decreed foreclosure and sale, directing the proceeds of sale to be first applied to costs, and afterwards to the interest and principal of the bonds, but nowhere adjudging any specific amount in favor of the plaintiff. Held, that the judgment is objectionable on the ground of uncertainty, and that there should have been a finding by the jury of the amount due the plaintiff.</p>