36 Colo. 377 | Colo. | 1906
delivered the opinion of the court:
This was an action to foreclose a lien upon certain ditch stock. It went off in favor of defendants upon a motion for judgment upon the pleadings. The answer consisted, in effect, of a denial of the material allegations of the complaint, and a plea of the statute of limitations. *
With .the pleadings SO' framed, the motion for judgment upon the pleadings presented two questions : The sufficiency of the- facts stated in the complaint to constitute a cause of action, and the sufficiency of the plea of the statute of. limitations. Such are the questions here. The following are the facts stated in the complaint:
November 13, 1890, The Iron-Stone Ditch Company was a corporation organized under the laws of this state. Defendant, Johnson, owned six shares of its capital stock, which stood upon the books in
(Company Seal.) J. C. Bbown, Secretary.”
In September, 1894, defendant company, • with full knowledge of the facts recited as to tbe assignment of tbe stock, and that tbe lien thereon so created still existed, caused an entry to be made on its books cancelling ■ said certificates held by Johnson, and reissued tbe certificates to Halley, tbe present bolder.
Defendant company contends:
1. That no sufficient entry of tbe assignment of Johnson’s stock to plaintiff was made upon the books of defendant company.
2. That tbe failure of Johnson to deliver bis stock to plaintiff was fatal to plaintiff’s lien.
3. That the three years’ statute of limitations was fatal to tbis action.
4. That no assignment of errors was filed.
Considering these contentions in their order:
1. Johnson defaulted in tbe payment of bis note, which act authorized tbe bolder of the note— tbe plaintiff — to foreclose tbe lien, if any, which it held upon tbe ditch stock in question.
As said in Webber v. Bulloch, 19 Colo. 214, 220, 221:
“We think that, under the facts of this case, the defendant in error has shown good reason for failure to procure a transfer of the stock in question to*382 be made upon the books of the company, and has done all he could do to conform to the policy of the law, and that it would not only be inequitable, but a perversion of the true intent of the statute, to subject him to the loss of his property solely for the fault of the officers of the company. ’ ’
See, also, Isbell v. Graybill, 19 Colo. App. 580.
2. The written assignment transferred the ownership of the certificates as between the parties, and the entry of this transfer, and the certificate of the secretary to its making-, effectuated such transfer as to the defendant company and as to third parties. ' — Richardson v. Longmont S. Ditch Company, 19 Colo. App. 483, 490, and authorities cited. ■
3. It is said that because this action involves a cancellation of the certificates of stock held by Halley, it is an action for relief on the ground of fraud and barred by section 2911, 2 Mills’ Ann. Stats. Fraud is not an essential of plaintiff’s cause of action;, its case is not dependent upon the proof of fraud. The action is simply one upon a promissory note to recover a personal judgment, and incidentally to foreclose a lien upon certain shares of stock, and is not dependent upon proof of fraud. The case is not within the statute. — Murto v. Lemon, 19 Colo. App. 314, 319; 19 Am. and Eng. Ency. of Law (2nd ed.), p. 247.
4. The assignment of errors was printed in the abstract of the record, it had no' existence outside of this printed form, and was not attached to the transcript; it was, however, filed at the same time as the transcript. While the usual and perhaps better practice is to file the assignment of errors attached to the transcript, and at the same time as its filing, we cannot say that the course pursued here was not a compliance with our Rule 11. Further, no prejudice
The judgment below should be reversed.
Reversed. .
Chief Justice G-abbebt and Mr. Justice Maxwell concurring.