99 Cal. 162 | Cal. | 1893
Judgment went in the court below for plaintiff; and defendants appeal from the judgment and from an order denying a new trial.
In January, 1888, Simon Kullman et al. recovered a money judgment for several thousand dollars against the defendant in the present action, Jacob Greenebaum; and on September 23, 1889, an ordinary writ of execution was issued on said judgment. The sheriff undertook, under said writ, to levy upon and sell as personal property the “seat” of said Greenebaum in an association known as the San Francisco Stock and Exchange Board. He endeavored to accomplish this in the following manner: He delivered to the president and secretary of said association a copy of the said execution “ together with a notice that all moneys, credits and effects of the defendant, Jacob Greenebaum, in the possession or under the control of the said San Francisco Stock and Exchange Board, together with the seat, interests and shares of the defendant, Jacob Greenebaum, in and to the San Francisco Stock and Exchange Board, were levied upon by virtue of said writ.” He then advertised the said seat, interest, etc., for sale for a period of six days; and on October 16, 1889, he sold the same to William Lowenberg, the plaintiff herein—he being the highest bidder. On the same day the sheriff gave to plaintiff a certificate of sale which, after reciting the above facts, certifies that the sheriff had sold to plaintiff “all the right, title and interest of Jacob Greenebaum, one of the defendants, in and to the San Francisco Stock and Exchange Board, and the seat, interest and shares of the said Jacob Greeuebaum in the San Francisco Stock aud Exchange Board.”
On said October 16th the plaintiff herein served a notice
The said San Francisco Stock and Exchange Board is a voluntary association without capital stock or shares. The findings, and an agreed statement of facts, set forth very fully its constitution and by-laws, and show very clearly its character and purposes. There are stock boards in other American cities very similar to the one here in question, and they all seem to have been framed upon the same model. It is sufficient to state here a few of the features of the San Francisco Stock and Exchange Board, as follows: It is a voluntary association consisting of not more than one hundred persons; it does not itself do any stock business, but its purpose is to afford facilities for its members doing such business, each individually for himself; each member has a “seat” in the board, and his seat represents and is the sole basis of his rights in said board, and entitles him to a place in the room provided by the association for the use of its memberk, to participate in its meetings, and to therein transact his individual business as a stock broker; occasionally the board, as an incident to its purpose of providing a place for the meeting of its members, has a surplus of money over its expenses, and sometimes divides said surplus among its members, and the owner of a seat is entitled to his proportion of such surplus
There are many other features of the association not necessary to be here especially mentioned; the foregoing gives a clear notion of its general character. The plaintiff was never elected a member, and the association has always refused to recognize him in any way. The defendant Greenebaum remains in possession of the said seat, and is recognized as the lawful occupant thereof by the association.
An attempted voluntary sale of the seat by Greenebaum to L iwenberg, the latter not having been elected a member of the board, and the association not having consented to the sale, would not have transferred the title to the seat, or to any of its .incidents; and it is difficult to see how a simple sale under execution transferred something which the judgment debtor himself could not have transferred. (Freeman on Executions, sec. 112, and cases there cited.) Moreover, a creditor cannot have property of a debtor applied to the satisfaction of a debt except in the way provided by law; and there is no way provided by law by which such an intangible thing as a seat in the stock board above described — that is, a personal privilege of being and remaining a member of a voluntary association with the assent of the associates—can be levied upon and sold under execution. Section 688 of the Code of Civil Procedure provides that property may be levied upon under a writ of execution “in like manner as upon writs of attachment”; and section
Whether the respondent by a creditor’s bill in chancery, or by proceedings supplementary to execution under our code, could reach appellant’s.right to a seat in the board, is a question not now before us. We merely hold that respondent did not acquire title to that seat, or to its incidents or appurtenances by virtue of the execution sale hereinbefore mentioned. And under these views it would be useless to inquire into the relations between the San Francisco Stock and Exchange Board and the other appellant, the Company of Associated Stock Brokers. As the respondent has no title to said seat he has no interest in those relations.
The judgment and order appealed from are reversed.
Fitzgerald, J., and De Haven, J., concurred.