Fraud" we have disposed of this type of claim and need not consider it further.
Finally, plaintiff alleges that he is entitled to equitable relief in the form of a declaratory judgment that the stock certificate is valid, or in the alternative an order of this Court requiring the Corporation to issue a new valid certificate.
As we have noted above, an equitable remedy will be withheld where the applicable statute of limitations bars the concurrent legal remedy. Cope v. Anderson, 331 U.S. 461, 464, 91 L. Ed. 1602, 67 S. Ct. 1340 (1947). Since concurrent jurisdiction does exist, and the statute of limitations has barred plaintiff's requests for legal relief, equity will follow the law and be controlled by the applicable statute of limitations. Therefore, plaintiff's equitable cause of action will not lie.
Even if the statute of limitations were not a bar, the doctrine of laches would still operate to prevent the grant of equitable relief. The doctrine of laches stems from the principle that equity aids the vigilant. It is designed to promote diligence and to prevent the enforcement of stale claims. Defendants, due to plaintiff's failure to take timely action, have been seriously prejudiced in their defenses. The death of Rohrich alone is an example of the prejudice caused defendants by plaintiff's dilatory conduct. Plaintiff has shown no facts which would make equitable relief proper or appropriate.
Answering counterclaims for the return of the void certificate so that the certificate might be cancelled, hence, avoiding future potential liability.
If certificates of stock are issued illegally, or by an officer fraudulently or without authority, and the circumstances are such that they are void or voidable, the corporation may cancel them, or they may be cancelled by a court of equity in a suit brought for that purpose by the corporation. Fletcher Cyc. Corp. (Perm. Ed) § 5166.
In view of our determination that plaintiff's claims for relief are barred by the statute of limitations, plaintiff has no proprietary interest in the stock. The certificate, as any overissued security, is void and worthless. Scovill v. Thayer, 105 U.S. 143, 26 L. Ed. 968 (1882).
Therefore, to avert any claim by a future transferee of the stock, we hold that the certificate should be returned to the corporation for cancellation. See 18 C.J.S. Corporations § 249.
An Order consistent with the above has been entered this day.
JOHN H. PRATT
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 433 F. Supp.]
Upon consideration of plaintiff's Motion for Summary Judgment and the Motions for Summary Judgment by all defendants, the attached Memorand of Points and Authorities, the Statement of the Material Facts as to which there is no genuine issue, the oppositions of the parties thereto, and it appearing that there is no genuine issue of material fact, it is by the Court this 25th day of May, 1977
(1) That the Motions for Summary Judgment of all defendants be, and hereby are, granted and plaintiff's Motion for Summary Judgment denied; and
(2) The plaintiff shall deliver to defendant, Answering Service, Inc., his stock certificate for 10 shares of the capital stock of defendant for cancellation within 10 days hereafter.
JOHN H. PRATT / JUDGE