The opinion
DISSENTING OPINION.
GRAVES, J.
I can not concur with my learned brother Woodson in the views he has taken on the motion to dismiss the appeal in this case. This motion was filed 'in this court by the firm of Henderson, Marshall & Becker, Attorneys, on August 15', Í910. With it are filed two exhibits. The first is claimed to be a copy of a resolution adopted by the board of directors of the Continental Assurance Company on August 10, 1910, and is certified to by C. J. Lang, who signs himself as secretary of the corporation. The other is a conglomeration of resolutions, elections, and conversations, signed and certifiéd to by nobody. However, there is a form of an affidavit thereto signed by one William IT. Corcoran, but no oath was ever taken b3r Mr. Corcoran and no official name or jurat follows his signature. Mr. Corcoran does not purport to be an officer of the company in charge of the records thereof, nor an officer at all. By reading this conglomerated mass one would get the idea that he was a stenographer who took down all that was done and said whilst some of the directors of the Compaq were together on the 29th day of August, 1910. The purported resolution first mentioned says that the firm of Henderson, Marshall & Becker are authorized to dismiss the appeal in this case. This is all that appears on file on the part of the movents to sustain the right of these attorneys to represent the company. On the same day there was filed objections in opposition to this motion. These suggestions cover some ten typewritten pages, and are signed by Selden P. Spencer, as attorney for the Continental Assurance Company and by Grant Gil *101 lespie as “ General Counsel of Continental Assurance Company,” together-"with counsel for the individuals.
These suggestions and the facts therein contained are sworn to by three persons, i. e., H. B. Gardner, W. H. Thompson and Grant Gillespie.
These suggestions protest against the right of Henderson, Marshall & Becker to represent the Continental Assurance Company. These sworn suggestions challenge the several meetings of the directors, and the things done thereat, including the authority claimed to have been given Henderson, Marshall & Becker, on the ground, among others, that there was no legal quorum at such meetings, and, as to one of the meetings, on the further ground, that it was a called or special meeting, and only a part of the directors were notified of the meeting. Thus stands the record on this motion. The motion itself is set out in Judge Woodson's opinion.
I. Both Selden P. Spencer and Henderson, Marshall & Becker appeared in this court. Each claimed to represent the company. Each challenged the authority of the other. As to the presumptions which accompany the appearance of a regular licensed attorney in this court as representing a client, the presumptions are equal in this case. Messrs. Henderson, Marshall & Becker so recognized the law and to turn the scales to their side filed the two instruments above described in our short statement of facts. Mr. Spencer retorts with the affidavit of three persons to the effect that there was no quorum at the meetings at which this authority was given to Henderson,' Marshall & Becker and at which Mr. Spencer was claimed to have been discharged. Under this state of the record it is unfair to counsel for this court to say that one has the authority and the other has not, without the taking of testimony upon the disputed fact. In oral argument it was so contended by Judge Spencer. The purported transcript of the alleged meeting of July 29th, at *102 which time Judge Spencer is said to have heen discharged, and Grant Gillespie as general counsel is said to have been discharged, can hot be considered at all, because it is neither certified nor verified. So that upon this ground the motion should not be sustained without further proof of the facts. This is the third ground of the motion as set out in Judge Woodson’s opinion.
II. The only other ground of serious moment is the second ground wherein the sufficiency of the affidavit is questioned. In this connection we only desire to submit the affidavit, because it speaks for itself. The affidavit reads:
“ State of Missouri, i City of St. Louis. /
“Harry B. Gardner, Fiscal Agent and Secretary of the Continental Assurance Company of America, acting on behalf of said company, W. H. Thompson, Treasurer of said Continental Assurance Company of America, acting on behalf of said company, Harry B. Gardner, W. H. Thompson and Grant Gillespie, each being duly sworn, makes oath and says, that the appeal prayed for in the above entitled cause from the order" refusing to. revoke the interlocutory order appointing a receiver is not made for vexation or delay, but because the affiants believe that the appellants are aggrieved by the said action, judgment and decision of said court.
“Harry B. Gardner, Secretary and Fiscal Agent Continental Assurance Company of America.
“H. B. Gardner.
“Grant Gillespie.
“W. H. Thompson, Treasurer of Continental Assurance Company of America.
“W. H. Thompson.
*103 “Subscribed and sworn to before me, this 20th day of July, 1910.
“My term expires December 20th, 1912.
‘ ‘ Shepard R. Evans,
Notary Public within and for the City of St. Louis, Mo. ’ ’
The point made is that the affidavit does not aver that the affiants are the agents of the company.’ A reading of the foregoing shows that the contention is not well founded. It shows that both the • secretary and treasurer of the company made the affidavit for the company. Not only so, it shows that the fiscal agent made the affidavit for the company. As to this ground the motion should be overruled.
III. As to the first and fourth grounds of the motion, they are' dependent solely upon proof, and sufficient proof is not here in support thereof. These two points under present conditions should be overruled.
Going to the fifth ground it is sufficient to say that it does not attack the appeal of the company, and we will not at this time discuss the rights of the individual defendants.
Being .satisfied that my brother Woodson is in error in his opinion, I respectfully dissent therefrom for the reasons aforesaid.
Lamm, J., concurs in these views.