N. E. 92, where a similar order was consider"We construe this decree to be in substance an order to the libelee to pay to libelant the sum named, to be used by her in the support of herself and the child, and that the libelant could enforce against the libelee whatever duty was placed upon him by the decree. The provision that it should be paid to the attorney of the libelant, rather than to her in person, was doubtless inserted for the convenience of the parties." This, it must be assumed, was the purpose with respect to the order in this case, and, while the respondent had full power to receive and receipt for the payments as they fell due, he had no control over the money and could not, without anything further appearing from the record, sue for and recover the arrears in his own name. The allegation that the suit was instituted for the benefit of another did not alter his relation to the judgment or order sued on, since such an allegation could not bind the real owner of the judgment, and she might sue upon it, if a suit could be maintained thereon, regardless of respondent's action. Of course, if respondent had obtained judgment, and Mary L. Monroe had taken the money realized therefrom, such fact might be set up as a defense in another action brought by her on the same judgment. This would be so by way of an estoppel, however, and not upon the ground of former adjudication. In 23 Cyc. 1507, the rule with respect to parties to actions on judgments is stated thus: "An action on a judgment must be prosecuted by the real and beneficial owner of it, whose title to it must appear of record or by some formal transfer, and the suit cannot be maintained by a third person not answering these conditions, although the judgment may in some way define his rights or inure to his benefit or protection."

But respondent insists that the question was not properly raised by demurrer, since in the demurrer the alleged ground was a want of legal capacity to sue. It may be conceded that as a general rule the want of legal capacity to sue, referred to in section 2962, Rev. St. 1898, means a want of capacity to appear in a court and maintain an action, regardless of in whom is vested the right of action. In this state any person of sound mind, of lawful age, and under no restraint or legal disability, has the legal capacity to sue, although it may ultimately appear that he has no cause of action. Where, however, it appears from the face of the complaint, as in this case, that the right to maintain the action is not in the plaintiff, but in another, the complaint is defective for want of a statement of sufficient facts to maintain the action. It is elementary that a complaint good in law must not only state a complete cause of action against the defendant, but it must also show a right of action in the plaintiff. In this respect the complaint in this case was defective, aud

hence vulnerable by demurrer. That such a defect may be raised by demurrer is amply sustained by the authorities. 15 Enc. Pl. & Pr. 564, 713, where the cases are collected. In the absence of authority, however, and resting the proposition upon principle alone, why may not a defect of this kind be raised as a question of law, when the defect is made to appear from the face of the complaint? In such event it certainly presents no issue of fact, but purely one of law, to be determined from the allegations contained in the complaint, which are admitted by the demurrer. It follows, therefore, that the court erred in not sustaining the demurrer upon this ground.

This brings us to the second proposition, which seems to us to be one of grave importance with respect to actions based on decrees and judgments of a sister state. It is urged by appellant that the order or judgment for the accumulating alimony or maintenance sued for in this action is not a final judgment, order, or decree, and therefore is not the subject of an action, and does not fall within the protection of the full faith and credit clause of the federal Constitution. Upon the other hand, respondent strenuously contends that it is such a judgment, and entitled to full faith and credit in this state, to the same extent and with like effect as it would have in the state of Colorado, where it was rendered. Authorities are cited by both parties sustaining their respective contentions. We confess to having been compelled to modify our first impressions with regard to the finality of orders or judgments of the character like the one before us. Upon principle the order or judgment sued on, as pleaded, bears on its face the usual prerequisites of a final judgment, as such are defined to be in the books. Judgments are generally defined to be final, for the purpose of basing an action thereon, when the judgment is "a definitive and personal judgment for the payment of money, final in its character and not merely interlocutory, remaining unsatisfied, and capable of immediate enforcement." 23 Cyc. 1503. The judgment or decree sued on in this case certainly was final to the extent that either party could have prosecuted an appeal therefrom, and thus was not merely interlocutory. it was enforceable as against appellant by execution in the state where rendered, and, as admitted by the demurrer, was unsatisfied, and was for the payment of money only. As to the validity and effect of judgments or decrees granting divorce and alimony in the state of Colorado we are not advised. Upon the question of whether the courts of one state take judicial notice of the laws of another state upon this subject the authorities are in conflict, some holding that in actions on judgments of a sister state, a federal question

being involved,, under the full faith and credit clause of the federal Constitution, the state courts will take judicial notice of the laws of a sister state upon the subject respecting the validity and effect of judgments; while others, and what appears to be the general view, hold that the laws of other states must be proved as facts in this class as in all other cases. 23 Cyc. 1547, 1548. Our Code (section 3374, Rev. St. 1898) defines matters of which the courts in this state take judicial notice, and we think the matter respecting the laws of a sister state is not within the provisions of that section. But, be that as it may, it seems to us the safer rule is to require proof of the laws of a sister state in this regard, as well as in all others. Assuming, therefore, the law with respect to divorce and allmony in Colorado to be the same as our own, the judgment was liable to modification by the court rendering it upon application of either party at any time for good cause shown; and such, under the decisions, seems to be the effect of such judgments in the state of Colorado, as declared by the Supreme Court of that state in the case of Stevens v. Stevens, 72 Pac. 1061, 31 Colo. 188. Whether the law still remains so we are not advised.

Respondent's counsel, however, contend that, although the judgment required the alimony to be paid in installments for future support, still the amount was fixed and certain; that while the amount was subject to change, or might be entirely withdrawn by the court, nevertheless the judgment was enforceable for the amount due and unpaid until modified by the court rendering it. It must be conceded that there is much force in this contention, and that it is likewise supported by some courts of great learning and of the highest respectability, as is evidenced by the following cases: Barber v. Barber, 21 How. (U. S.) 582, 16 L. Ed. 226; Arrington v. Arrington, 127 N. C. 190, 37 S. E. 212, 52 L. R. A. 201, 80 Am. St. Rep. 791; Wagner v. Wagner, 26 R. I. 27, 57 Atl. 1058, 65 L. R. A. 816; Trowbridge v. Spinning, 23 Wash. 48, 62 Pac. 125, 54 L. R. A. 204, 83 Am. St. Rep. 806; Knapp v. Knapp (D. C.) 59 Fed. 641; Brisbane v. Dodson, 50 Mo. App. 170.

While there are other cases cited by counsel for respondent in support of their contention, and in which similar judgments were enforced, the foregoing cases are all that discuss and directly pass upon the question presented by this appeal. Upon the other hand, counsel for appellant contend that, since the decree or judgment sued on was subject to change or modification at any time by the court of Colorado, it therefore was not a final judgment, and an action could not be maintained thereon; that, not being final, it did not fall within the full faith and credit clause of the federal Constitution and was not protected thereby, and that the question presented is a federal question, upon which the decisions of the Supreme Court

of the United States are controlling, and to som some extent, at least, binding on this court. In support of their contention they cite authorities of equal learning and respectability, as appears from the following cases: Lynde v. Lynde, 41 App. Div. 280, 58 N. Y. Supp. 567; Lynde v. Lynde, 162 N. Y. 405, 56 N. E. 979, 48 L. R. A. 679, 76 Am. St. Rep. 332; Lynde v. Lynde, 181 U. S. 183, 21 Sup. Ct. 555, 45 L. Ed. 810; Page v. Page, 189 Mass. 85, 75 N. E. 92. While the first three cases are one and the same case, still having been passed upon by three appellate courts, considering the same facts, makes the citations fully as strong, if not stronger, as authority, as though there had been three cases decided by the same courts falling within the same principle. When we come to consider the comparative weight of the authorities cited by both sides, those cited by respondent are affected in their force or weight, while the ones cited by appellant are strengthened, by reason of the circumstances surrounding them which we will now attempt to point out.

To start with, the cases of Trowbridge v. Spinning and Brisbane v. Dodson, supra, hardly fall within the class of the case at bar. In Trowbridge v. Spinning the suit was for a fixed sum, payable as soon as the decree was entered, and hence comes within the rule announced by the Supreme Court of the United States in the Lynde Case. In Brisbane v. Dodson the allegations of the complaint were to the effect that the judgment sued on was final, and not subject to change or modification by the court rendering it. This case, also, is not within the class to which the case at bar belongs. Arrington v. Arrington and Knapp v. Knapp were both decided before the Lynde Case was passed on by the Supreme Court of the United States, and hence the latter, being a case from an inferior federal court, is overruled, by implication at least, by the Lynde Case, while the former is by a divided court, and might not have been decided as it is if the court deciding it had been confronted with the decision of the court of last resort on federal questions. This brings us to the only remaining case, to wit, that of Wagner v. Wagner, decided by the Supreme Court of Rhode Island in 1904. This is the only case, decided after the Lynde Case was passed on by the Supreme Court of the United States, which holds to the doctrine that a judgment like the one at bar may be sued on in a sister state before the state court in which it was rendered has fixed an absolute sum due and payable at some time prior to the bring. ing of the action thereon. While the case of Barber v. Barber, 21 How. (U. S.) 582, 16 L. Ed. 226, was not directly mentioned by the Supreme Court of the United States in deciding the Lynde Case, yet it was thoroughly considered and reviewed by both the New York courts, and distinguished from the Lynde Case; and the Supreme Court, in its

opinion in the Lynde Case, sustained the New York courts, and it must be assumed that the Supreme Court of the United States concurred with the New York courts in distinguishing the Barber Case. This is of great significance when we remember that all the cases cited by counsel for respondent are based upon the Barber Case. If thus Barber v. Barber is modified, as stated in the Lynde Case, there is little, if anything, left upon which to rely as an authority from the Supreme Court of the United States with regard to the right to sustain actions on judgments such as here in question; and this is clearly the conclusion reached by the Supreme Judicial Court of Massachusetts in the case of Page v. Page, supra. The latter case is the only one to which our attention has been called, and which we could find by independent research, that has passed upon the precise question before us now. That case refers to and reviews the Lynde Cases, and the court arrives at the conclusion that

the Supreme Court of the United States is the final arbiter with respect to what judgments the full faith and credit clause of the Constitution applies, and its decision is binding on the state courts.

The question, as we understand it, in view of the decision in the Lynde Case, may be stated thus: That an action upon a judgment or decree for alimony or maintenance, rendered by a court of competent jurisdiction of one state, may be maintained in another court of competent jurisdiction of another state, where the amount due or payable is fixed, having a definite sum presently due and enforceable in the state where rendered; but that alimony or maintenance becoming due in the future, payable in installments, is not a final judgment upon which an action can be brought, unless and until the court which rendered it passes upon and fixes the specific amount due and payable, in some proper proceeding in the original action, or by an independent action, if such can be maintained in the state where the original order or judgment was entered. The mere fact, however, that a specific sum, presently due, is also subject to modification, does not defeat the action in any other state; but the fact that a sum is not specifically fixed as due from one to the other of the parties to the original suit, and certain sums are to become due in the future and payable in installments or otherwise, does defeat the right of action, unless the amount due is ascertained and fixed by some appropriate proceeding before the action on the judgment or order or decree is commenced, as above stated. In view, therefore, that the judgment or decree in this case falls clearly within that class which in the Lynde Case is held not to be a final judgment, and hence not within the protection of the full faith and credit clause of the federal Constitution, we have no alternative than to hold that the action cannot be maintained on the judgment as it 91 P.-18

now stands. The trial court, therefore, erred in overruling the demurrer.

The judgment is reversed, with directions to the district court to sustain the demurrer. Appellant to recover costs.

MCCARTY, C. J., and STRAUP, J., concur.

(32 Utah, 440) JONES v. BONANZA MIN. & MILL. CO. et al.

(Supreme Court of Utah. July 16, 1907.) 1. CORPORATIONS-OFFICERS AND AGENTS-DE FACTO OFFICERS.

All irregularities in a corporate election, the legality thereof, as well as the legal qualifications of the officers elected, are settled by the election as against a collateral attack.*

[Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations, § 1245.]

2. SAME MEETINGS OF DIRECTORS — STATUTORY PROVISIONS.

A provision in articles of incorporation that a new board of directors shall organize within a time specified after their election is directory merely.

3. SAME-STOCK-ASSESSMENT-VALIDITY.

Articles of incorporation of a mining company provided that no assessment should be levied while there was treasury stock remaining in the treasury. At the time of levy of an assessment shares of such stock were undisposed other substantial value. Held, that the fact of and in the treasury, but had no salable or alone that such stock was undisposed of did not render the assessment void.†

[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 654.1

4. SAME DE FACTO OFFICERS.

A director who, when elected, did not hold sufficient shares of stock to qualify him for that office under the articles of incorporation, but did hold the required amount at the time an assessment was levied on the stock of the corporation by the board, was at least a de facto officer, and the assessment as against a collateral attack was valid.

[Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1240-1242.] 5. SAME.

Stockholders, who not only had means of knowledge respecting all the circumstances of an assessment on their stock, but about the time it was levied and before the sale of their stock to pay the assessment made an investigation of the acts of the board of directors through a competent lawyer, and could thus have arrested the consequences of the assessment had they desired to do so, cannot thereafter complain of its invalidity.

6. APPEAL REVIEW FINDINGS OF FACTCONCLUSIVENESS.

Findings of fact by the trial court in an equity case are conclusive, unless clearly contrary to the evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3970-3972.] 7. CORPORATIONS-ACTIONS-LACIES.

Stockholders of a mining corporation, who apply to a court of equity for its interference to protect their rights against the consequences *Hatch v. Lucky Bill Mining Company, 71 Pac. 865, 25 Utah, 405.

+Gary v. York Mining Company, 35 Pac. 494, 9 Utah, 464; Nelson v. Keith-O'Brien Company (Utah) 91 Pac. 30.

Hatch v. Lucky Bill Mining Company, 71 Pac. 865, 25 Utah, 405.

of alleged wrongful acts of the directors, must act with reasonable diligence, or present some good excuse for not having done so.

[Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations, § 1428.]

8. SAME-EVIDENCE-SUFFICIENCY.

Evidence, in an action to enjoin defendants from acting as the officers and board of directors of a corporation and from holding a stockholders' meeting and from making a sale of the corporate property, held not to establish fraud in obtaining an option on the stock of plaintiff and his associates and a proxy therefor and in failing to enter into a bond and lease. 9. SAME.

Evidence, in an action to enjoin defendants from acting as the officers and board of directors of a corporation and from holding a stockholders' meeting and from making a sale of the corporate property, held not to show reasonable diligence by plaintiff to correct the wrongful acts charged.

Appeal from District Court, Fifth District; Joshua Greenwood, Judge.

Action by George Jones against the Bonanza Mining & Milling Company and others. From a judgment for plaintiff, defendants appeal. Reversed, with directions to dismiss the action.

FRICK, J. This action was commenced by plaintiff, hereinafter designated respondent, against the defendants, who are appellants in this court, to enjoin them from acting as the officers and board of directors of the Bonanza Mining & Milling Company, a Utah mining corporation, and to enjoin them from holding a certain stockholders' meeting, and from entering into negotiations for and from making a sale of the property of said company, and for general relief. A restraining order was duly issued pending the hearing on the merits, and upon final hearing the individual defendant E. G. Jones, and four others who were not made parties to the action, were removed as officers and directors of said company, and others reinstated into such offices, and the appellant E. G. Jones and the four other members of the board of directors were enjoined from holding any stockholders' or directors' meeting. They were enjoined from offering for sale or selling the property of said corporation, and from transacting any of its business; and all acts of the board of directors of said corporation from and after March 9, 1903, including the acts on said date, were held illegal and void. The court further decreed that the plaintiff and his associates still were the owners of and entitled to the stock which was sold on the assessment hereinafter referred to. From the findings and the decree as made by the court, appellants prosecute this appeal.

Appellants' attorney has assigned over 80 errors, but has massed them into 8 groups, and nearly all of them in some way relate to errors of the court in granting the injunc

tion and other relief mentioned above. We shall not attempt to discuss the assignments separately, nor even do so in groups. The case may be determined upon the question as to whether under the whole evidence the respondent is entitled to the relief prayed for, or to any relief in this action. The complaint, findings of fact, conclusions of law, and decree cover 83 pages of the printed abstract, and the bill of exceptions containing the transcript of the evidence is composed of 663 pages of typewritten matter. In view of this it is utterly impossible within the limits of this opinion to attempt even a summarized statement of the pleadings and findings, nor of the evidence adduced at the trial. We will refer to such parts in the opinion as may be deemed necessary to a clear understanding with regard to the conclusions reached.

The principal matters relied on in the complaint consist of three separate agreements, all dated at Robinson, Utah, February 16, 1903, namely: (1) An agreement signed by one Ed. Mingle whereby he agreed to enter into a bond and lease with the Bonanza Mining & Milling Company "upon certain mining property in Juab county, Utah, upon terms and conditions this day agreed upon and to be agreed upon on or before April 1, 1903, or in the event of my failure so to do to forfeit and return that certain power of attor ney and option to purchase this day given me by D. A. Depue, George Jones, Raymond Jones, A. J. Underwood, and the Tintic Lumber Company"; (2) an agreement by the par

ties last above named as stockholders of the Bonanza Mining & Milling Company to said Ed. Mingle giving him an option on 176,604 shares of the capital stock of said company at the rate of five cents per share to remain in force unconditionally until April 1, 1904; and (3) a power of attorney or proxy by the five parties above named to said Ed. Mingle whereby he was given the right to vote said shares of stock in the same manner and to the same extent as the parties could do if present at any meeting, and "reserving only from this power the right to sell or incumber said shares of stock, it being understood that the powers and authority hereby delegated shall for a period of one year from April 1. 1903, next be irrevocable and shall run jointly with that certain option or options to purchase the shares of stock now owned by us this day given to said Mingle." The two last agreements were signed by the five parties named, and the first one was signed by Ed. Mingle alone. It is also alleged in an amended complaint that the bond and lease mentioned in the first of the three agreements above mentioned were entered into, and the court so finds in findings 13 and 14; but there is no evidence to sustain these allegations or findings and respondent's attorney at the trial, as the bill of exceptions discloses, disclaimed such to have been the fact. He. therefore, rests his claim for relief upon the

fact that Mingle should have entered into such a bond and lease, but that he fraudulently failed to do so.

After the three agreements had been entered into a stockholders' meeting of the Bonanza Mining & Milling Company was duly called to be held at its office at Robinson, Juab county, at which, according to the notice therefor, a new board of directors was to be elected for said company; authority to bond and lease the property to be obtained from the stockholders and to "ratify the action of the board of directors taken at said meeting." This meeting was duly held at the time and place designated in the notice and one Wardlaw, holding the proxy given to Mingle with the consent and direction of respondent, who was secretary of the Bonanza Company, and D. A. Depue, its president, elected a new board of directors. We remark here that at the annual stockholders' meeting of said company, held in the month of January. 1903, as appears from the recorded proceedings of that meeting, the old oflicers were continued in office until the stockholders should elect others. At the stockholders' meeting held on March 9, 1903, Mingle was not present, nor was the appellant C. W. Jones. When this meeting adjourned, the newly elected directors, as is claimed by respondent, were to meet on the same day at Salt Lake city to organize, while the appellants claim such meeting was to be held on May 9th following. In this connection the record of that meeting shows that "March" was changed by substituting "May" therefor. How or when such change was made, or who made it, the evidence fails to make clear. The fact. however, is that the new board did not meet until May, 1903, at which time two of the newly elected members, who were not consulted when elected, could not serve, and the board was filled by the others who qualified by taking the usual director's oath of office as provided by law and thereafter filed the same with the county clerk of Juab county. Afterwards, on June 6, 1903, another director was appointed in place of one who resigned on that day, and the one appointed duly qualified on June 9th by taking the oath of office and duly filed the same on June 22d. This board from and after May 11, 1903, conducted all the corporate business of the Bonanza Company during the year 1903, and in January, 1904, at the annual stockholders' meeting duly called and held at the office of the company at Robinson, Juab county, Utah, a new board of directors was elected, who duly qualified, and the same proceeding was had in January, 1905. On July 10, 1903, the board of directors, composed of the members elected and appointed as above stated, levied an assessment of one-fourth of one cent per share upon the whole of the outstanding capital stock of the Bonanza Company. The notice of this assessment was regularly published in a newspaper, and copies of the notice

But

were mailed to the stockholders. The respondent and his associates received this notice, and protested against the assessment upon the ground that they had no stock except that on which they had given an option to Mingle and that he should either do the assessment work under his bond and lease or else take care of the assessment upon their stock. The officers of the company, however, disclaimed any knowledge of such an option or of any agreement to that effect, and insisted on the assessment being paid with the view of obtaining money to keep the mining claims of the company in good standing. Respondent and his associates, as they admit, consulted a lawyer at the time with respect to the regularity of the assessment; and the officers. as respondent admits, offered back at that time to him and his associates all the books, records, and matters pertaining to the affairs of the company if they would take charge of the corporate affairs and pay the debts necessarily incurred, which appeared of small consequence. respondent refused to do this. The sale of the delinquent stock was postponed pending the controversy, but, no understanding having been arrived at, the sale took place October 3, 1903. At this sale 229,484 out of about 295,000 shares then issued were offered for sale as delinquent. Out of this number the officers of the company bid in for its benefit, for want of bidders, 168,956 shares. J. G. Campbell, the then president, bought 33,720 shares, and N. B. Campbell, the then secretary, bought 23,808 shares, and J. A. Lloyd, a director, bought 3,000 shares. From this it appears that the assessment of one-fourth of one cent per share was paid on about 66,000 shares out of the whole capital stock of 300,000 shares, for which the corporation was incorporated. The whole amount thus realized from this assessment, from the assessments paid and stock sold as above set forth, amounted to about $300, or only sufficient to keep three out of the seven mining claims owned by the company in good standing if there were no other expenses.

It further appeared that the officers, before the assessment was levied, made frequent attempts to dispose of treasury stock to raise money to defray the necessary expenses of the corporation, and that they had disposed of treasury stock, realizing about two cents per share therefor, but could not find sale for any more, so that at the time the assessment was levied there were about 5,000 shares of the treasury stock undisposed of; but it is not seriously contended by any one that those shares had any market or other substantial value at that time, or that they were saleable. It further appeared that at least two assessments had been levied on the stock prior to the assessment of July, 1903, and that when these assessments were levied there was a large amount of stock in the treasury and unsaleable, and that respondent and his associates assented to these first two