New Jersey Sheep & Wool Co. v. Trader's Deposit Bank

104 Ky. 90 | Ky. Ct. App. | 1898

-JUDGE PAYNTEB.

delivered the opinion of the court.

It appears that tbe firm of Pidcock & Rodgers (the members of which being J. N. Pidcock, Sr., John F. Pidcock, John N. Pidcock, Jr., and John K. Rodgers) were indebted to the appellee bank in the sum of $3,598.33, to recover which this action was brought against the Pidcoeks and Rodgers. Rodgers was brought before the court by having a summons served upon him. The Pidcocks were sued as non-residents, and were before the •court by constructive service. The appellant, the New Jersey Sheep & Wool Company, and R. H. Kyle were made defendants; and the summons and order of attachment were served on Kyle individually, and as agent of the appellant. The averment in the petition as to the indebtedness of the appellant and Kyle to their co--•defendants, tlie Pidcocks, is in the following language, to-wit: “The defendant New Jersey Sheep & Wool Company is a corporation created under the laws of New Jersey. That said defendant New Jersey Sheep & Wool Company is indebted to its co-defendants J. N. Pidcock, Sr., John F. Pidcock and J. N. Pidcock, Jr., in a sum far more than sufficient to pay the plaintiff’s demand; all of said Pidcocks being stockholders in said defendant corporation, and each of them owning enough paid-up and unincumbered stock therein, and undivided profits or surplus therein subject to distribution, to more than pay the'plaintiff’s demands herein sued on. That the defendant R. H. Kyle is the chief officer or agent of the defendant corporation in this State, and said defendant corporation, and said defendant Kyle, as its agent, have in their possession in this State about $2,300.” The appellant filed an answer, denying that it was indebted to the Pidcocks in any sum whatever, or that they had any stock, etc., in the appellant company. There was deposited to the credit of Kyle $2,300 in the appellee bank. The plaintiff instituted an action in equity, and enjoined the appellant and Kyle from withdrawing that sum from it. Plaintiff filed an amended petition, in which it was alleged that at the time the attachment was served the plaintiff was further indebted to the Pidcocks for merchandise, sheep, etc., furnished it, and for money loaned it by them, all aggregating a sum of more than $2,300. It also averred that the appellant had in its possession at least $2,300 belonging to the Pidcocks, and that such fund was placed in the hands of the appellant to enable it to carry on a business at Mt. Sterling; that it concealed the fact that the money belonged to the Pidcocks, that they might, cheat, hinder, and defraud their creditors. After plaintiff had taken testimony by which it established the fact that J. N. Pidcock, Jr., was the owner of certain shares of paid-up stock in the appellant company, of the value of several thousand dollars; it filed another amended petition, alleging that J. N. Pidcock, Jr., owned the stock in the appellant company, and averring that as the appellant, in its answer as garnishee, had untruthfully denied its liability in any way to the defendant J. N. Pidcock, Jr., and also denied that he held stock in the appellant company, it thereby converted the stock to its own use and control, and became thereby liable for its value. It was therefore claimed that the appellant became liable as garnishee, to the payment of the debt upon which suit was brought. The appellee first sought to subject the $2,300 as a payment on its debt against Pidcock & Rodgers. It claimed that the money in bank belonged to-the Pidcocks. The evidence taken in the case shows this claim to be incorrect. In fact, there was no competent testimony tending to show the money belonged to the Pidcocks. It was only upon a showing that the money belonged to the Pidcocks that the appellee bank could subject it-to the payment of the debt which Pidcock & Rodgers owed. There is no evidence in the record whidi tends to show that the appellant was in any wise indebted to the Pidcocks or Rodgers at the time the order of attachment was sued out and served. When these facts were made to appear, the plaintiff, by amended petition, claimed that the appellant had become indebted to J. N. Pidcock, Jr., because of the conversion of his stock by the appellant. This claim is based upon the fact that Kyle, who was acting for the appellant in the purchase of sheep and lambs in Kentucky, filed an answer in which it was denied that the appellant was indebted to the Pidcocks in any sum, or that they held any stock therein. At the time the answer was filed, the appellee’s pleadings disclosed the facts that the Pidcocks were non-residents of Kentucky, and that the appellant was a non-resident corporation organized under the laws of New Jersey. The court did not have jurisdiction to sell the stock which the Pidcocks held in the appellant company. It is said in Cook, Stock and Stockholders, section 485, that: “All attachment statutes provide for the attachment of a non resident debtor’s property in the State; and generally under such statutes, the stock owned by a non-resident in a corporation created by the State wherein the suit is brought may be attached, and' jurisdiction be thereby acquired, to the extent of the value of the stock attached. Rut under no circumstances can a defendant’s shares of stock be reached by levy of attachment in an action commenced outside of the State wherein the corporation is incorporated. For purposes of attachment, stock is located where the corporation is incorporated, and nowhere else. The shares owned by a non-resident defendant in the stock of a foreign corporation can not be reached and levied upon by virtue of an attachment, although officers of the corporation are within the State, engaged in carrying on the corporate business.” If the appellee could not seize, and the court did not have jurisdiction to sell, the stock which the Pidcocks may have held in the appellant company, then it was wholly immaterial, so far as the bank was concerned, in this suit, whether the Pidcocks did or did not have stock in the appellant company. It was not necessary for the appellant to deny that such stock wafe held, because the court did not have jurisdiction to sell or subject it to the payment of the bank’s debt. The appellant, by amended pleading, explained the circumstances under which Kyle filed the answer, and showed that he had no connection with the company, except as we have herein indicated.

We do not think the facts authorized this court to hold that the answer which Kyle filed for the appellant would amount to a conversion of the stock of J. N. Pidcock, Jr. It is true that an action will lie for the conversion of shares of stock. The proof in this case shows, that the secretary and treasurer of the appellant, after the answer was filed, regarded J. N. Pidcock, Jr., as a stockholder. He, in so far as the record shows still holds his certificate of stock. Neither does it appear that the company, outside of this action, has questioned Pidcock’s right to the stock, nor has it done so in this action on any issue raised between the appellant and Pidcock; for, as a matter of fact and law, there is no issue in the action between them. It is evident that the reason which influenced the bank to try to make the appellant liable for the alleged conversion was because it had failed to show that the $2,300 in bank belonged to the Pidcocks, and, further, because the stock which J. N. Pidcock, Jr., held in the appellant company, could not in this jurisdiction be subjected to the payment of the plaintiff’s debt. If the $2,300 had actually belonged to the Pidcocks, then the court would have so adjudged, and appropriated it to the payment of the bank debt; but, as the money in the bank belonged to the appellant, the court would not get jurisdiction to adjudge the rights of the parties simply because the bank claimed the amount deposited belonged to the Pidcocks.

The conclusions we have reached obviate the necessity of considering the question as to the jurisdiction of the court, and the rights of the appellee had it appeared that tbe appellant was indebted to tbe Pidcocks at the time the order was served. The judgment is reversed, with directions that the petitions be dismissed.

Judge HazeMgg not sitting.