205 Wis. 641 | Wis. | 1931
The complaint alleges the corporate capacity of J. Mandelker & Sons, Inc., upon information and belief. It likewise alleges upon information and belief that the plaintiff began an attachment proceeding, and alleges upon information and belief that the certificate or certificates of stock representing the shares are in the possession of Martin Mandelker or the defendant corporation. These allegations are attacked upon demurrer as insufficient. We are cited to Mills v. Jefferson, 20 Wis. *50, p. 54; Sweet v. Davis, 90 Wis. 409, 63 N. W. 1047; Winterfield v. Cream City Brewing Co. 96 Wis. 239, 71 N. W. 101, and other
“The allegations of the complaint on information and belief challenging the validity of appellants’ title upon the ground that no license to sell the realty was granted, it is insisted, are not sufficient to raise such question. That seems to be ruled in appellants’ favor by Union L. Co. v. Chippewa County, 47 Wis. 245, 2 N. W. 281.” (Other cases cited.)
The allegation there in question related to the existence of a license to sell real estate. It is quite apparent that the statement there made was not carefully considered. The cases cited all relate to the character of the allegations in-an answer sufficient to raise air issue requiring the plaintiff to produce proof. There is a wide distinction between allegations in the complaint sufficient to admit evidence upon the matters alleged and the sufficiency of the allegations in an answer to raise an issue with respect to facts alleged in the plaintiff’s complaint. See 21 Ruling Case Law, p. 457, § 22, and cases cited.
While the complaint is far from a model pleading, it is not subject to attack by demurrer. The pleader should state facts within his knowledge positively and not upon information and belief. If he does not do so, while the allegation may be sufficient to admit the proof, the burden cast upon the opposite party who is called upon to admit or deny is quite different.
The defendant Martin Mandelker was not served and made no appearance. The demurrer was on behalf of the defendant corporation and it appeals from the order granting the temporary injunction. The action was originally brought against the defendant Martin Mandelker alone and a writ of attachment0 was issued. The sheriff made a return to the effect that the defendant could not be found; that he had attached the shares of stock owned and held by the defendant in J. Mandelker & Son, Inc., by delivering to and leaving with its secretary a copy of the writ of attachment and de
The in junctional order is attacked upon the ground that it is contrary to the provisions of sec. 272.27 (2), Stats., which is as follows:
“Sec. 272.27 Levy upon corporate stock. . . .
“(2) . . . provided, however, that no attachment or levy upon shares of stock for which a certificate is outstanding shall be valid until such certificate be actually seized by the officer making the attachment or levy, or be surrendered to the corporation which issued it, or its transfer by the holder be enjoined. Except where a certificate is lost or destroyed, such corporation shall not be compelled to issue a new certificate for the stock until the old certificate is surrendered to it.” (From Uniform Stock Transfer Act.)
It is also sought to sustain the injunction on the ground that thé compláint contains allegations in the alternative that the stock is in the possession of the defendant company. If the stock had been in the possession of the defendant company by reason of the relation of the company to the defendant stockholder, the attachment would have been effective. If it had been in its possession by reason of a prior transfer to a third party who seeks transfer upon the books, to which under the statute he would be clearly entitled, then the attkchment would not have been effective because the title had passed from the holder. So -in any event the plaintiff is not entitled under the statute to an injunction against the company. ■
The stock could have been impounded in one of the three ways provided in the statute: (1st) by the actual seizure; (2d) by the surrender of the certificate to the corporation
It is argued that if the statute be so construed it results in making stock of a Wisconsin corporation owned by a resident of the state subject to attachment while the stock of the same corporation held and owned by a person in another state cannot be attached. It is perhaps a sufficient answer to this to say that the same is true of other kinds of personal property. It must be attached if at all where found. It is true that prior to the enactment of the Uniform Stock Transfer Act it was held that shares of stock in a corporation are personal property, the location of which is in the state where the corporation is created and is there subject to attachment. 2 Cook, Corporations (8th ed.) § 485 and cases cited. The cases, however, arose under the law as it stood prior to the adoption of the Uniform Stock Transfer Act. While the question was not directly involved in the case of Estate of Shepard, 184 Wis. 88, 197 N. W. 344, the doctrine of that case supports the conclusion we have reached in this case.
That it was the intention of the- framers of the Uniform Stock Transfer Act to make the method of transferring shares effective without regard to transfer upon the books of the company is indicated by the last provision of sec. 1 (183.01 (2), Stats.), which provides that the section shall apply although the charter or articles of incorporation or code of regulations or by-laws of the corporation issuing the certificate and the certificate itself .provide that the shares represented thereby shall be transferable only-on the books of the corporation. See Klein v. Wilson & Co. Inc. (1924) 7 Fed. (2d) 769; Desmond v. Pierce (1925) 185 Wis. 479, 201 N. W. 742.
By the Court.- — The orders appealed from are reversed, and cause remanded with directions to sustain the demurrer and dissolve the injunction.