H. M. Rowe Co. v. Rowe

Sloan, J., delivered tfie opinion of tfie Court. We fiave fiere two appeals and two records in tfie same case. Tfie first is on an order overruling tfie appellant’s demurrer to tfie appellee’s bill. Tfie second is tfie plaintiff’s (appellee in tfie first case) appeal from an order overruling lis demurrer to tfie petition filed by tfie executrix of H. M. Rowe, Sr., deceased, to intervene as a party defendant in tfie suit.

In tfie second case tfie appellee filed a motion to dismiss tfie plaintiff’s appeal on tfie ground tfiat tfie order of tfie court making tfie executrix a party is interlocutory and not final and therefore not appealable. Tfie bill states tfiat “tfie defendant, tfie H. M. Rowe Company, is a body corporate of tfie State of Maryland, with general offices in tfie City of Baltimore, where said corporation is engaged in tfie publication of educational text books and commercial school publications, and tfiat on or about' April 3, 1925, tfie said Tfie H. M. Rowe Company issued to your petitioner a certificate for two hundred and fifty (250) shares of tfie capital stock of the said company and tfiat your petitioner is today tfie rightful owner of said shares, but tfiat tfie certificate therefor is withheld by tfie ⁶⁰¹ defendant company, has been wrongfully cancelled by the defendant company, and that said company has refused upon demand to issue to your petitioner a new certificate therefor.” The bill further alleges that the certificate of stock was delivered to the appellee by his father, Harry M. Rowe, Sr., the then president of the appellant company, who-gave it to the appellee because he would not receive anything under the father’s will; that at his father’s request the appellee signed the stub of the stock book and thereby indicated his acceptance of the certificate, and that the appellee then re-delivered the certificate, unendorsed, to his father for safe keeping; that the father died May 9th, 1926, after which the appellee learned that the appellant had destroyed his unassigned certificate by mutilating the signatures thereon, and caused the same to be inserted in the stock book as a cancelled certificate, and that though demand has been made therefor, the corporation has refused to issue to the appellee a new certificate in lieu of the one destroyed. Wherefore the appellee prays a. decree directing the issue to him of a certificate for two hundred and fifty shares of stock as of April 3rd, 1925, an accounting of dividends and profits, and for general relief. It is further alleged that the number of shares of stock authorized by the certificate of incorporation of the H. M. Rowe Company is seven hundred and fifty, and that certificates for this number have been issued and are outstanding on the books of the company, all to H. M. Rowe, Sr., except thirty shares; that of the shares standing on the books of the company in the name of H. M. Rowe, Sr., the certificates for two hundred and fifty shares have been endorsed to Jeannette S. Rowe, two hundred and fifty to Jeannette S. Rowe, trustee for Portia Rowe, and two hundred and twenty endorsed in blank.

In her petition to be made a party defendant, Jeannette S. Rowe, executrix of Harry M. Rowe, Sr., says that “there is no way to accomplish the relief sought by said bill save and except by taking away said stock, or all except thirty shares thereof, from the estate of her testator” and that “the ⁶⁰² bill of complaint shows that the defendant corporation has issued all the stock that it is authorized to issue; and that there is no way to get the stock sought by this bill except from her testator’s estate.” Equity provides the remedy to compel the issuance of stock wrongfully withheld. Marbury v. Ehlen, 72 Md. 206 ; Baltimore Retort & Fire Brick Company v. Mali, 65 Md. 93 ; Hughes v. Drovers’ Bank, 86 Md. 418 ; Colmary v. Crown Cork & Seal Co., 124 Md. 476 ; Bloede Co. v. Bloede, 84 Md. 129 ; Miller’s Eq. Proc., sec. 48. In such a case the corporation is not only a necessary, but is the indispensable party.

Miller’s Eq. Proc., sec. 48; St. Louis & S. F. R. Co. v. Wilson, 114 U. S. 60, 62 ; Kendig v. Dean, 97 U. S. 423 ; Baltimore Retort & Fire Brick Co. v. Mali, supra. The question presented to us in the first of the appeals is whether the