Fox

This action was brought by plaintiff, as a stockholder in the corporate defendant named, against the corporation, the directors thereof, and various other persons, charging a fraudulent conspiracy between the directors and others to cheat and defraud the corporation. Among other preliminary allegations, the plaintiff charges that Hayward and Hobart were largely the owners of the stock in the Nevada Mill and Mining Company, and controlled and managed the Mexican Mill, and that they conspired with other persons to defraud the Hale & Norcross Silver Mining Company. For that purpose they procured the control of the last-named corporation, and, by certain practices set forth, caused certain persons named as defendants to be elected directors of *982 said corporation. It is charged that said directors were at all times controlled by said Hayward and Hobart in all official acts; that they all conspired to cheat and defraud the corporation by various cunning and fraudulent acts, practices, arts and 'devices, intending by them to have the effect of increasing their own gains at the expense of the corporation and its stockholders. Certain devices and practices are then stated, from which it…

I dissent from that part of the judgment which directs the court below to enter judgment against certain appellants for $210,197.50, and from so much of the *1004 principal opinion as leads to that result.. I concur in all other respects in the opinion of Mr. Justice Temple/ I am of the opinion, however, that the language of this court on the former appeal did not preclude the appellants, on the second trial, from making the point, as to the whole case, that the respondent was not a bona fide stockholder during the time when the alleged causes of action accrued, and therefore not entitled to maintain the action—a point which did not appear in the record on the former appeal, and was not on its merits then passed upon.

I concur in the judgment and generally in the views expressed by Mr. Justice Temple upon which it is based. Were the question of the correctness of the court’s finding as to plaintiff’s capacity to maintain the action open to inquiry upon this appeal, I should strongly incline to the view that it was not supported by the evidence. But I am unable to perceive wherein either the reasoning or conclusion of the main opinion upon that question can be successfully upset. As conclusively shown by Judge Temple, and as is indeed obvious, that finding was and is primarily essential to the validity of the judgment of the court below to any extent. Its correctness was in no manner attacked or questioned upon the former appeal. Upon that appeal the cause was remanded for a new trial solely as to the single issue of the alleged imperfect and fraudulent milling of the ore; and thereby, in all other respects, the findings and conclusions of the court below were manifestly as effectually sustained and affirmed as if so ordered in terms, since the lower court was left no power or discretion to reopen or disturb its findings or judgment in any other respect. In other words, our former judgment was…

I dissent. When this case was before the court upon the former appeal, I felt compelled to dissent from the conclusion then declared. By that conclusion it was held that the evidence was insufficient to justify the finding of fact made by the trial court to the effect that seventy-four per cent in bullion of the car-sample assay should have been returned to the Hale & Norcross Mining Company by the milling company. Upon the second trial of the case by the superior court, all the evidence introduced at the first trial was admitted, and in addition thereto other important evidence was introduced, bearing upon the issue as to the amount of bullion which should have been returned to the mining company. Upon the second trial the court found as a fact that sixty-seven per cent of the bullion as indicated by the car-sample assay would be a fair return to the mining company. It thus appears that at the second trial the percentage of bullion was reduced by the court, and at the same time the evidence upon the point strengthened. I am fully convinced that the evidence, as disclosed by the record, is amply sufficient to support this finding of fact made by the trial court. And I am therefore…