31 Wash. 566 | Wash. | 1903
The opinion of the court was delivered by
— This action was brought in the lower court by respondent against appellant to require appellant to issue to respondent certificates for 166,666 shares of stock of appellant corporation, and for other relief. The summons and complaint were regularly served on the defendant corporation on November 9, 1901. The summons required defendant to appear within twenty days thereafter and defend the action. On the 29th day.of November, 1901, which was the last day for defendant to appear and defend the action, it served a demand upon plaintiff’s attorneys, requiring them to furnish to defendant, a certified copy of an assignment referred to in the complaint. On the next day a copy of this demand was filed in the clerk’s office. The plaintiff did not comply with this demand, but on December 3, 1901, filed a motion for default and judgment, and on the 6th served the motion for default and judgment upon defendant’s attorneys. Thereafter, on the next day, December 7th, defendant filed a demurrer to the complaint, and also a motion to dismiss the motion for default. Plaintiff’s motion for default came on regularly for hearing on January 2, 1902, both plaintiff and defendant being present; and the court,
The respondent moves to dismiss this appeal because the bond on appeal is for $300, conditioned both as an appeal and as a supersedeas bond. The judgment is a money judgment for costs, and also a judgment for other relief. The court was not asked to fix, and did not fix, the amount of a bond to be given by appellant as a supersedeas of that part of the judgment which was for relief other than money. The bond given was for $300 — $200 for an appeal bond, and $100 additional — being double the judgment for costs. This bond operated as a supersedeas upon the judgment for costs and as an appeal bond. It did not operate as a supersedeas upon the other parts of the judgment, and was not intended to do so. We think this bond was sufficient, under the statute, to give this court jurisdiction, and the motion is therefore denied.
The statement of facts upon the hearing of the motion for default, and upon the first motion to set aside the de
The complaint, after alleging the corporate character of the defendant, is as follows:
“(2) That on January 31, 1898, one Marcus Bertram subscribed for, and paid for in full, 333,333 1-3 shares of the capital stock of the said defendant; that no certificates for the said shares of stock were issued to the said Marcus Bertram. (3) That on February 8, 1898, the said Marcus Bertram, for value, duly sold, assigned, transferred, and set over, in writing, one-half of the aforesaid shares of stock to which he was entitled as aforesaid, unto the plaintiff herein, who is now the owner and entitled to the possession of the same. (4) That plaintiff has demanded of the defendant that it issue to him the certificates for the shares of stock in the defendant corporation to which he is entitled as aforesaid, but that the defendant fails and refuses so to do, and the defendant further refuses to recognize the plaintiff as one of its stockholders, and to permit the plaintiff to inspect the books of the defendant corporation. (o) That plaintiff is without any plain, speedy, or adequate remedy at law.
“Wherefore plaintiff prays the following: (1) That a decree be entered adjudging the plaintiff to be the owner and entitled to the immediate possession of 166,666 2-3 shares of the capital stock of the defendant corporation, and requiring the defendant to at once issue to the plaintiff a certificate for the said shares, and further requiring the defendant and its officers to permit the plaintiff to inspect the books of said corporation, and to fully recognize and acknowledge the plaintiff’s rights as a stockholder in said corporation; (2) for judgment against the defendant for*570 his costs of suit; (3) and for such other and further relief as to the court may seem meet and equitable.”
The complaint shows that Marcus Bertram subscribed and fully paid for 333,333 1-3 shares of the capital stock of the corporation. He was therefore a stockholder in the corporation, and entitled to a certificate for these shares, as prescribed by the by-laws of the company, which certificate was negotiable in the sense that it might be sold, and the interest of the owner of the shares transferred to another, upon compliance with certain conditions usually provided in the by-laws of the corporation. The complaint further shows that no certificate for the said shares was issued to the said Marcus Bertram. If Marcus Bertram was entitled to certificates after he had paid for the shares, and the company had refused to issue the same to him, the general rule, as stated by many decisions and text-writers, is that an action in equity may be maintained by a stockholder to compel the corporation to transfer or issue certificates of the stock of the corporation to the rightful owner. Mr. Cook, in his work on Stocks, etc. (3d ed.), at § 61, says:
“The corporation is bound, upon demand, to deliver to a stockholder a certificate of stock representing his interest in the corporation. If it refuses to issue the certificate, the stockholder may bring suit in equity to compel its issuance.”
Under the head “Bights and Duties of the Corporation in Allowing or Befusing Begistry,” the same author, at § 389, says:
“Where, for any reason, the corporation refuses to allow the registry of a transfer of stock, when it is the duty and obligation of the corporation to allow it, the transferror or the transferee who applies for registry may, in general, pursue one of three remedies” — one of which is a suit*571 in equity to compel the corporation to register a transfer of the stock. It is also held that an injured person may resort to the legal or equitable remedy at his election. 20 Enc. Pl. & Pr. p. 814; State ex rel. Bross v. Carpenter, 51 Ohio St. 83 (37 N. E. 261, 46 Am. St. Rep. 556); Withers v. Lafayette County Bank, 67 Mo. App. 115; Keller v. Eureka Brick Machine Mfg. Co., 43 Mo. App. 84 (11 L. R. A. 472); Baker v. Wasson, 59 Tex. 1. See, also, McAllister v. Kuhn, 96 U. S. 87; Payne v. Elliot, 54 Cal. 339 (35 Am. Rep. 80). In Huggins v. Milwaukee Brewing Co., 10 Wash. 579 (39 Pac. 152), in commenting upon the rule that an action will lie for a conversion where there is demand and refusal to transfer stock, this court, at page 582, said:
“Whether a rule giving to stockholders in a corporation such a privilege would have to be upheld in this state, we need not now decide. But granting that it is a rule so firmly established in the law that its enforcement could be justly required under our statutes governing corporations, we are strongly convinced that it is a harsh and dangerous rule, the application of which ought not to be extended beyond those cases where there is a clear legal right on the part of the assignee of stock certificates to have a transfer.”
The section of the statute which the court had in mind when this statement was made is § 4261, Bal. Code, which is as follows:
“The stock of the company shall be deemed personal estate, and shall be transferable in such manner as shall be prescribed by the by-laws of the company; but no transfer shall be valid except between the parties thereto, until the same shall have been entered upon the books of the company, so as to show the names of the parties, by and to whom transferred, the numbers and designation of the shares, and the date of the transfer.”
This statute was, no doubt, intended to relieve a corporation from any liability whatever on account of the trans
Under this view of the case, it is unnecessary to consider the other question.
The cause is reversed and remanded, with leave to respondent to amend his complaint within thirty days after the remittitur is filed below, if he so desires.
Anders and Durbar, JJ., concur.
Eullertor, C. J., concurs in the result.