
    WEINBERG v REPUBLIC STEEL CORP et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 16417.
    Decided May 31, 1938
    Russell N. Chase, Toledo, and Edward Lamb, Toledo, for appellee.
    Thomas F. Patton, Cleveland, and Day, Young, Veach & LeFever, Cleveland, for appellant.
    STEVENS, PJ, WASHBURN and DOYLE, JJ, (9th Dist) sitting by designation.
   OPINION

PER CURIAM

This is an appeal on questions of law, seeking solely a review of the propriety of the order of the trial court overruling the defendant company’s motion to dismiss the action because of the claim that the action was fraudulently brought, and was illusory in nature.

This was not an ordinary motion in which a defendant against whom a judgment was sought was attempting to question the motives of the plaintiff bringing the suit; the plaintiff’s action so far as relief was sought, was against the directors, and was ostensibly brought for the benefit of the corporation, against whom no relief was sought, and the statute authorizing such a suit to be brought specifically requires that the party for whose benefit it purports to be brought must be made a party; such a party has a right to deny that the action is brought for its benefit, and to have that issue determined independently of the issues between the plaintiff and the defendants against whom a judgment is sought.

The defendant company against whom no relief was sought raised that issue in this case by a motion to dismiss the action because it was not brought in its behalf and in fact was brought for the benefit of an organization not a party to the suit, and to enable such organization to control the conduct of the defendant company in whose behalf the plaintiff claimed to bring the action. In other words, the defendant company raised the issue as to whether the action was brought for a purpose diametrically opposed to the purpose claimed.

A consideration of the record in this case convinces this court that reasonable minds can reasonably reach but one conclusion, and that, is that the action was not brought in good faith for the .purpose of procuring the relief prayed for in the petition, nor for the benefit of those whom the plaintiff claims a right to represent or for the promotion of their interests, but that it was brought at the instigation of persons not parties to the action for the purpose of serving their interests.

The record disclosing this situation, it was the duty of the trial court to sustain the defendant company’s motion and dismiss the action.

The trial court erred in not granting the motion filed by the defendant company, and its order overruling said motion is therefore reversed; and this court, proceeding to render the judgment which the trial court should have entered, orders that said motion be sustained and plaintiff’s petition dismissed at the costs of plaintiff.

Judgment reversed and final judgment for the defendant company (appellant in this court).

STEVENS, PJ, WASHBURN and DOYLE, JJ, concur.  