Mr. Corthell then said that as the evi
dence offered by the plaintiffs was not
sufficient to maintain the action and as
Baxter’s deduction were stated-by him to
be merely’ his own conclusions from facts
offered in evidence and such conclusions
could be drawn by council either way
with the same force and validity he
moved that the case be dismissed as noth
ing had been developed to justify further
proceedings.
“On what points do you rely?” asked
the court.
“On the ground of the ruling already
made by the court,” responded Mr. Cor
thell. “In order to maintain this action
and entitle the plaintiffs to any part of
the relief asked they must have found,
first, fraudulent mismanagement on the
part of the defendants; second, that
through this mismanagement the corpora
tion bad become hopelessly insolvent. On
these propositions the plaintiffs have
failed to make out a case under the rul
ings of the court.”
“The court may have stated the matter
a little broadly,” said Judge Scott. “I
am not clear whether mismanagement
alone or whether mismanagement which
is fraudulent in its character is re
quired to grant relief in this case.”
The court also spoke of fraud which
was actual or constructive and Mr. Cor
thell thought either would be sufficient
ground. The latter also otated there was
insufficient proof of the unwillingness of
officers of the corporation to institute
this proceeding.
Stoll said that owing to a press of
other work and sickness he was disposed
to finish out the testimony and make
final arguments on the legal propositions
involved which must then cutnc up any
how.
