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to this action. In that case this court said: “If the particular piece of land in controversy had been, prior to the passage of the act of Congress of July 1, 1864, dedicated by the city as a public square, Congress, by granting and relinquishing the title of the United States to the city,
ratified and confirmed the dedication, and this virtually perfected the dedication.” (68 Cal. 444.) It was not decided in that case whether there had been a dedication. That question, we think, was determined in favor of the defendant herein by the judgment in the second action.
The objection to the validity of the judgment in the first case, which was made in the People v. Holladay, supra, cannot be urged against the judgment in the case of Holladay v. City and County of San Francisco, the second judgment pleaded in bar in this case, because Holladay v. City and County of San Francisco was commenced December 17, 1864, several months after the passage of the act of Congress referred to. If the land has ever been dedicated to the public use, such dedication must have been before the
passage of that act, at least before the commencement of the action, December 17, 1864. In the second action referred to, the same acts which are here claimed as acts of dedication were relied upon by the defendant therein, plaintiff herein. The court there necessarily held, in view of its judgment, that no dedication had ever been made. It would seem, therefore, that the matter is res adjudicata, and that the city is barred from further litigation of the question, and estopped from denying the fact. Issue therein was not joined until December 30, 1864, and final judgment was not rendered until December 25, 1867. It is claimed by appellant that the record in that case is not binding upon the city or the people, for the reason that, at the date of the institution of the suit, all the title that the city had was the bare right to the possession of this land in trust for the people of the state. But the particular
matter litigated in that suit was, whether the city held the fee in trust for the people or at all, and it was adjudged therein that the city had no right, title, or interest in the land. The judgment in that case was not appealed from, and is final so far as the city is concerned. It quieted the title of the plaintiff as against any and all claims of the defendant therein. Upon the strength of that title, so quieted, it appears that some of these defendants have purchased portions of the property in good faith. "It is for the public good that there be an end to litigation. If it were otherwise, there would be no security for any person, and great oppression might be done under color and pretense of law.” (Miles v. Caldwell, 2 Wall. 39; Broom's Legal Maxims, 243.)
2. The provisions of the consolidation act authorized the city and county of San Francisco to "sue and be sued, plead and be impleaded, defend and be defended, in all courts of law, and in all actions of law, and in all actions whatsoever.” (Act of 1850, sec. 2; Stats. 1850, p. 223.) Under this provision, we think that the plaintiff in Holladay v. City and County of San Francisco, supra, could maintain an action against said city and county.
SHARPSTEIN, J., SEARLS, C. J., McFaRLAND, J., and THORNTON, J., concurred.
(No. 11238. Department One.- April 30, 1888] CHARLES F. BURHAM, APPELLANT, v. SAN FRAN
CISCO FUSE MANUFACTURING COMPANY, RE
CORPORATION-DISSOLUTION AT INSTANCE OF STOCKHOLDER.—The facts
that the officers of a corporation had refused to allow a stockholder to inspect its account-books, that it is carrying on a losing business, and that the directors had levied an assessment for the purpose of compelling the stockholder to dispose of his stock, are insufficient to entitle the stockholder to maintain an action for the dissolution of the corporation.
APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order setting aside a restraining order.
The action was brought by the plaintiff, a stockholder in the corporation defendant, to restrain the sale of his stock for a delinquent assessment, and for the appoint ment of a receiver to take charge of and wind up the affairs of the defendant. The court granted a preliminary restraining order, which was afterwards set aside, and judgment rendered in favor of the defendant. The further facts are stated in the opinion of the court.
J. C. Bates, for Appellant.
The plaintiff had a right to inspect the books and papers of the wefendant. (People v. Throop, 12 Wend. 183; Cotheal v. Brouwer, 5 N. Y. 566; Taylor on Private Corporations, sec. 565.)
James A. Waymire, and W. T. Baggett, for Respondent.
McKINSTRY, J.—The complaint avers that on the sixth day of April, 1885, the board of directors of the defendant passed an order whereby they levied an assessments No. 10, of two dollars a share on the capital stock of said corporation, payable, etc.; that the order contained a notice that “any stock upon which this [said]
assessment shall remain unpaid on the eleventh day of May, 1885, will be delinquent, and advertised for sale at public auction, [and] unless payment be made before, will be sold on Friday, the twenty-ninth day of May, 1885, to pay said delinquent assessment, together with the cost of advertising and the expenses of sale”; that on the twelfth day of May, 1885, a delinquent list or notice was published by defendant in the Daily Examiner, a daily newspaper, etc., a copy whereof is annexed to the complaint; that, unless restrained, the defendant will, at the time and place mentioned in the notice, sell the one hundred shares alleged to belong to the plaintiff.
So far as appears from the complaint, the order levy. ing the assessment and the publication comply with the provisions of the Civil Code.
In addition, however, to the prayer for a decree enjoining the sale, the plaintiff prays "that a receiver be appointed to take charge of and wind up the affairs of the said corporation defendant.”
This last decree seems to be sought upon the averments that the defendant's secretary, on a certain day, refused to show plaintiff "the vouchers and bills paid or payable, so that he might learn and know the financial condition of defendant;" that the secretary, on a certain day, testified in an action between these parties that the corporation had no reputation or good-will of any value, "bu't that it was a worthless concern as it stands”; and that, according to plaintiff's information and belief, that the draw fendant is not making gain, but is running behindhand, and will continue to do so, "the way it is now managed, owing to the low price of fuse, etc. The further allegation that the real object of the defendant and its directors is to get the plaintiff's stock for the assessment is hardly a cause of complaint, if the concern is worthless.
If in this state a corporation may be dissolved at the suit of a stockholder, the court below was justified in refusing such decree upon the facts alleged in the present cogiin
plaint. (Civ. Code, sec. 377; Taylor on Private Corporations, 610, 611.)
The demurrer was properly sustained.
SEARlS, C. J., and PATERSON, J., concurred.
(No. 11356. Department One.—April 30, 1888.] CHARLES F. BURHAM, APPELLANT, v. SAN FRAN
CISCO FUSE MANUFACTURING COMPANY, RESPONDENT.
INJUNCTION-CORPORATION-SALE FOR DELINQUENT ASSESSMENT-IN
SUFFICIENT PUBLICATION OF NOTICE OF SALE. ---An injunction will not issue to restrain the sale of stock to satisfy a valid assessment thereon which had become delinquent, merely because the notice of the sale was published for an insufficient length of time, unless the stockholder bas paid, or offered to pay, the amount of the assessment.
APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing an injunction.
The action was brought by the plaintiff, a stockholder in the corporation defendant, to restrain the sale of his stock for a delinquent assessment, on the ground that the notice of sale had been published for an insufficient length of time. The assessment in question was levied on the 6th of April, 1885, and not being paid by the plaintiff, the corporation, on the 2d of June, passed an order for the sale of the stock on the 15th of June. The notice of the intended sale was first published on the 2d of June, thirteen days before the sale. Section 339 of the Civil Code requires such notices to be published for at least fifteen days before the sale, but provides, in section 346, that "no assessment is invalidated by a failure to make publiration of the notice hereinbefore provided for, nor by