188 Ga. 794 | Ga. | 1939
Mrs. Louise P. Finsterwald as executrix of the estate of her mother, Mrs. Edith Pappenheimer, filed a petition
The court overruled the demurrer. The defendant answered, admitting some of the plaintiff’s allegations and denying others,
The statute law under which plaintiff sued is expressed in the Code as follows:
§ 63-211. “Whenever any certificate or other evidence of the stock of any bank or private corporation organized under the laws of this State, United States or any of the States or Territories of the United States where said corporation’s principal office is located in this State, shall be lost or destroyed, and the owner thereof or legal representative shall desire to establish the same, such person or legal representative shall present a petition to the superior court of the county wherein the principal office of the bank or corporation is located, which petition must be sworn to by the party applying and shall contain as full and accurate a description as possible of said lost or destroyed certificate or other evidence of said stock and of the loss and mode of loss and of the inability to find the same, and a prayer for the establishment of a copy, setting forth the copy desired to be established. Thereupon the judge of said court presiding shall issue a citation or notice directed ‘To whom it may concern,’ which citation shall contain the description of the copy sought to be established, the time and place of hearing, and the name of the bank or corporation that issued the original and the name of the person claiming to own the same, and seeking to establish the same, and the number of shares of stock embraced in said certificate, and said citation shall be served upon the bank or corporation at least 10 days before the date of the
§ 63-212: “If no successful defense shall be made at the time and place appointed for the hearing by said bank or other corporation or any person or persons who may be interested in said lost certificates of stock, the said court shall proceed to establish by an order entered on the petition the copy so prayed to be established, which shall have all the effect of said lost original. If the bank or other corporation or parties interested shall file a defense under oath to the effect that such original never existed, as claimed, or shall produce the original in court, or that for any reason said copy should not be established in lieu of the original, then the judge of said court shall decide after giving the parties time for prepáration for hearing at the next regular. term of the said superior court, upon the ease so made, and if in favor of the applicant and no writ of error shall be sued out as hereinafter provided, said judgment or decree shall be entered on the petition, and then the copy so established shall be recognized and treated as corporate stock in lieu of said original stock.”
§ 63-213. “If the decision of said court shall be in favor of the bank or other corporation, or any person or persons interested, the said court shall enter its judgment or decree on said petition. In all cases, all the proceedings shall be recorded in the book of minutes of said court. Either party dissatisfied with the judgment or decree may carry the case to the Court of Appeals by writ of error as provided in other cases.”
§ 63-214. “Upon the establishment of the certificate or other evidence of stock of a bank or corporation as provided in the three preceding sections, all liability of said bank or corporation to any person who may be the owner or holder of the original certificate of stock, copy of which has been established in its stead, as pro
This is not an equity case, although the establishment of a lost instrument may in a proper case be a matter for equitable jurisdiction. Fulgham v. Pate, 77 Ga. 454. If the law, however, provides an adequate remedy, this must be followed. Osborn v. Ordinary of Harris County, 17 Ga. 123 (63 Am. D. 230). In the present case the plaintiff is pursuing the specific legal remedy provided by law, and the case is before this court, not as an equity case, but only as a case in which the constitutionality of a statute is drawn in question. Code, § 2-3005.
Aside from the constitutional questions, it may be said that the petition as amended alleged a cause of action within the statute, unless it was deficient in failing to state “the mode of loss.” The statute does not require that the mode of loss shall be stated in all events. The requirement is that the petition shall “contain as full and accurate a description as possible of said lost or destroyed certificate or other evidence of said stock and of the loss and mode of loss and of the inability to find the same.” The basic and essential facts are the existence of a genuine original owned by the plaintiff, and the actual loss or destruction of such original. The rest are matters of description, which must be given only as fully and accurately “as possible,” even as to the mode of loss. The petition alleged that “said certificate . . has become lost or destroyed,” and that “petitioner is unable to set out the mode of
The demurrer presented the contention that in such case the court is without jurisdiction to render a judgment or decree that would protect the defendant, because the proceeding is not one in rem, and no judgment could be rendered therein which would be binding upon any third person who might later claim to own the stock or some interest therein. The grounds relating to this contention are dependent on the further ground in which it was urged that the statute is unconstitutional as violating the due-process clause of the constitution of this State, and the due-process and equal-protection clauses of the Federal constitution. So the main question in the case is whether the act is void for any of the reasons stated. This question must be answered in the negative, as applied to the facts appearing. The company issuing the stock certificate being a Georgia corporation, for the purposes of this case the situs of the stock is in Georgia, although for some other purposes it might have a situs elsewhere. The proceeding is in rem, and not in personam, as contended. The statute requires that the judge shall issue a notice or citation directed “to whom it may concern,” identifying the suit and its subject-matter, and stating the time and place of hearing. This notice shall be published for four weeks in the newspaper in which the sheriff’s advertisements are published, in the county in which the principal office of the corporation is located; and “if the applicant shall reside in another county, said citation shall also be published in the county or counties where the petitioner has lived for IS months next preceding the application.” Since the act relates to a proceeding in rem, and contemplates a situs in this State, it was competent for the legislature to .provide for service by publication, and for a judgment conclusive upon all persons concerned, on compliance with the statute. This law is similar to § 81-S05, relating generally to actions in rem and for service by publication, and is not unconstitutional for any of the reasons urged. The case is controlled in principle by the following decisions: People’s Na
As to service upon “whom it may concern,” the present ease differs on its facts from Couey v. Talalah Estates Corporation, 183 Ga. 442 (2), 452 (188 S. E. 822), a land-registration case, where the statute was not complied with.
The court did not err in refusing to require an indemnifying bond. Since the statute is constitutional and the judgment will protect the defendant against claims of other persons, bond is unnecessary. The statute does not require bond, and the judge was right in declining to add such condition. Compare Mayor &c. of Savannah v. Burroughs, 36 Ga. 212. The stock certificate not being a negotiable instrument, the case does not present the difficulty which might arise if it were. Turner v. Williams, 29 Ga. App. 751 (116 S. E. 553); Sulunias v. Poolos, 148 Ga. 409 (98 S. E. 866); Powers v. Pacific Diesel Engine Co., 206 Cal. 334 (274 Pac. 512, 73 A. L. R. 1398); Novoprutsky v. Morris Plan Bank, 319 Pa. 97 (179 Atl. 218, 98 A. L. R. 1486).
A careful examination of the evidence forces the conclusion that the plaintiff proved her case as laid. Accordingly, the court did not err in refusing to grant a nonsuit. The judgment is not erroneous for any reason assigned.
Judgment affirmed.