Baer v. Waseca Milling Company

² Reported in 171 N.W. 767, 173 N.W. 401. On plaintiff's motion the court made an order requiring defendant to make its answer more definite and certain by setting out in words or substance the by-laws under which it asserted a lien on the capital stock in controversy. Defendant appealed from this order, and plaintiff moves to dismiss the appeal on the ground that the order is not appealable.

An order refusing to require a pleading to be made more definite and certain is not appealable. American Book Co. v. Kingdom Pub. Co. 71 Minn. 363, *Page 485 73 N.W. 1089; State v. O'Brien,83 Minn. 6, 85 N.W. 1135. An order requiring a pleading to be made more definite and certain, and providing that the pleading shall be stricken out unless made more definite and certain, is appealable. Lovering v. Webb Pub. Co., 108 Minn. 201,120 N.W. 688, 121 N.W. 911. This latter case distinguished the order there considered from the orders considered in the prior cases on the ground that it was in effect an order striking out the pleading and therefore involved the merits of the action. The order in the instant case makes no provision for the situation which would exist in the event of a failure to obey it. But a failure to comply with the order would be a sufficient ground for the court to strike the indefinite allegations from the answer, or bar defendant from introducing evidence in support of them. 31 Cyc. 651; Lipman v. Bechhoefer, 141 Minn. 131, 169 N.W. 536. This order may produce the same result as the order in the case cited, and we are of opinion that it is within the doctrine of that case and appealable as an order involving the merits. The motion to dismiss the appeal is denied.

On July 18, 1919, the following opinion was filed:

Action against a South Dakota corporation, authorized to do business in this state, to compel the transfer upon the books of the corporation of certain shares of its capital stock which plaintiff purchased of the person to whom the corporation had issued the same. The answer alleged as one defense that the court had no jurisdiction of the subject matter of the action. And as a further defense alleged that plaintiff's assignor had never paid for the stock; that its par value was $10,000; and "under and by virtue of the statute of the state of South Dakota and the by-laws passed pursuant thereto the defendant has a lien upon all the stock until the same is paid in full and no stock can be or is entitled to transfer on the books of said company until paid for in full and all liens satisfied." Plaintiff moved that the part quoted be made more definite and certain and the by-laws referred to, be set out in full, as well as the date of the passage thereof. The court granted the motion and required defendant within ten days from the date of the order to serve an amendment to the answer, setting out either in words or substance the by-law referred to and the date of its passage. The appeal is from this order.

Orders requiring a pleading to be made more definite and certain rest largely in the discretion of the trial court. Young v. Lindquist, 126 Minn. 414, 148 N.W. 455. If it be necessary to plead the existence of the by-law, there surely was no abuse of discretion in requiring defendant to set forth its *Page 486 substance and date of adoption. It cannot be presumed that a transferee of stock in a corporation has knowledge of the corporation by-laws.

The case of Guilford v. Western Union Tel. Co. 59 Minn. 332,61 N.W. 324, as we read it, sustains the proposition that the courts of this state have jurisdiction to grant the relief asked by plaintiff. The relief does not involve the exercise of visitatorial powers or the management of the internal affairs of the corporation. It merely involves whether a citizen of this state, who has bought stock from one to whom the corporation has issued it, is entitled to have it transferred on the books of the corporation. The corporation is duly licensed to do business in this state. If there is any amount due the corporation from the seller of the stock which is a lien thereon, the courts of this state should have no difficulty in protecting and enforcing the same as against the holder of the stock.

Order affirmed.

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