Wilson v. St. Louis & S.F. Ry. Co.
| Decision Date | 22 December 1891 |
| Citation | 18 S.W. 286,108 Mo. 588 |
| Parties | Wilson, Plaintiff in Error, v. The St. Louis & San Francisco Railway Company et al |
| Court | Missouri Supreme Court |
Error to St. Louis City Circuit Court.
Affirmed.
Botsford & Williams for plaintiff in error.
(1) Neither James nor Jesse Seligman, although parties to this suit, testify as a witness, either as to the alleged transfer of the stock or upon the question of partnership, or upon any other question in the case. It is well settled in this state that the failure of a party to a suit to testify to facts within his knowledge, and put in issue in the case by him raises a presumption against him. Baldwin v Whitcomb, 71 Mo. 658; Goldsby v. Johnson, 82 Mo. 605; 2 Whart. on Ev., sec. 1266. (2) The holder of the certificate is not the owner of the corporate stock. Pullman v. Upton, 96 U.S. 328; Johnson v Case, 99 U.S. 631; Railroad v. Moss, 14 Beav. 64; Adderly v. Storm, 6 Hill (N. Y.) 634; Wheelock v. Kost, 11 Cush. (Mass.) 183; Miller v. Ins. Co., 51 Mo. 55; McLaren v. Franciscus, 43 Mo. 468; Erskine v. Lowenstein, 82 Mo. 306; Fowler v. Ludwig, 34 Me. 455; Thompson on Stockholders, ch. 13. (3) The lower court erred in holding that notice of the transfer of the certificates at the execution sale defeated plaintiff's title. Ins. Co. v. Able, 48 Mo. 136; Bank v. Bank, 45 Mo. 513. (4) The St. Louis circuit court had jurisdiction of the motion for execution against the Seligmans, and as stockholders on the notices of said motion, personally served on said Seligmans in the city of New York, and posted up in the office of the clerk of said court; and the judgment of said court awarding such execution is valid and binding on defendants, and cannot be collaterally attacked in this suit. (5) The pendency of this suit of James and Jesse Seligman against the plaintiff and the defendant railway company in the United States circuit court for the eastern district of Missouri, to set aside and cancel the execution and sale of said stock, and to enjoin a transfer of the same to this plaintiff on the stock books of the corporation, is no bar to the maintenance of this suit. It has long been settled by the decisions of the federal courts that the pendency of a suit between the same parties for the same cause of action, and seeking for the same relief in law or in equity in the state court, cannot be pleaded in abatement of a like suit between the same parties in the federal courts. Hanlon v. Embrey, 93 U.S. 548; Gordon v. Geldfoil, 99 U.S. 168; Loring v. Marsh, 2 Cliff. (C. C.) 311; Wadleigh v. Veazie, 3 Sumn. (C. C.) 165; Hughes v. Elsher, 5 F. 263; Latham v. Chaffee, 7 F. 520.
James O. Broadhead and John O'Day for Seligmans.
(1) The notice employed in attempting to acquire jurisdiction of the Seligmans is process, and could only be served within the territorial jurisdiction of the court. Gilmore v. Byrd, 15 Fla. 410. The matter of constructive service of notice or process is a matter of legislative will, and constructive service in any other manner than that designated by the law-making power is an absolute nullity. Allen v. Mfg. Co., 72 Mo. 326; St. Louis v. Goebel, 32 Mo. 295; Whittlesey's Practice p. 64; Blanton v. Jamison, 3 Mo. 52; Schell v. Leland, 45 Mo. 293; Smith v. Rollins, 25 Mo. 408; Stewart v. Stringer, 41 Mo. 400. (2) Process or notice served beyond the territorial boundary of a state on a citizen of another state does not confer jurisdiction, and a judgment rendered on such service is void in state where rendered. Pennoyer v. Neff, 95 U.S. 714; Baylis v. Railroad, 19 Iowa 206; Emery v. Legro, 63 Maine, 357; Ross v. Buchanan, 13 Ill. 55. A judgment in personam, without service within the territorial jurisdiction of the court rendering it, is void. Wiley v. Pavey, 61 Ind. 457; Joyce v. Whitney, 57 Ind. 550; 557. (3) A stockholder in a corporation is not a party to an action brought by or against such corporation in the sense that the court, by acquiring jurisdiction over the corporation, thereby acquires jurisdiction over the person or individual property of the stockholder; the court can only acquire jurisdiction over the stockholder by service of notice of process upon him within the state. Hardwick v. Jones, 65 Mo. 54; Whitman v. Cox, 26 Me. 335; Bank v. Cook, 4 Pick. 405; Adams v. Bank, 1 Greenl. (Me.) 361; Hannah v. Bank, 67 Mo. 678. A stockholder is not liable as in the case of a partnership. Savings Association v. Kellogg, 63 Mo. 540; Perry v. Turner, 55 Mo. 418. (4) A summary proceeding against a stockholder of an insolvent corporation in accordance with the provisions of section 736, Revised Statutes of 1879, is in the nature of an original action, the notice required to be given partakes of the nature of original process, and service of notice beyond the boundary of the state, or by posting in the office of the clerk of the court, will not confer jurisdiction; therefore, a judgment rendered upon such service is void and of no binding force or effect in the state where rendered or elsewhere. Service of notice on the stockholder within the territorial limits of the state is contemplated by the statute. The state has full power over the person and property within its jurisdiction, but cannot extend its process beyond its boundaries. Howell v. Mengelsdorf & Co., 33 Kan. 194, also reported in 6 Am. & Eng. Corp. Cases, p. 413; Amsbaugh v. Bank, 33 Kan. 100; Rorer Inter-State Laws, 22; Freeman, Judgments, sec. 564, and authorities cited at page 417; Railroad v. Weeks, 52 Me. 461. A summary proceeding against a stockholder by motion is an action, and the stockholder is entitled to trial by jury. Bank v. Anderson 1 Mo. 244; Bank v. Mfg. Co., 9 Cush. 585. (5) The uncontradicted evidence establishes that J. & W. Seligman & Co. were not the owners of the stock attempted to be sold, at the time the same was levied upon, but that the years prior thereto had assigned the stock to bona fide holders, for value, by executing a blank assignment and power of attorney indorsed on the back of the stock certificates. This transfer, although not made by an entry on the transfer books of the company, is valid against subsequent attaching and execution creditors. 4 Am. & Eng. Railroad Cases, pp. 342-3, and authorities there cited; Eames v. Wheeler, 19 Pick. 442; Nesmith v. Bank, 6 Pick. 324; Sargent v. Railroad, 9 Pick. 20; Sargent v. Ins. Co., 8 Pick. 90; Bank v. Mfg. Co., 127 Mass. 563.
E. D. Kenna for St. Louis & San Francisco Railroad Company.
(1) Neither the laws of a state nor the jurisdiction of its courts can extend beyond its territorial limits. A state has complete jurisdiction over persons or property found within its boundaries, but beyond them it cannot go, and a personal judgment rendered against a non-resident who has not been served within the state is void. Freeman on Void Judicial Sales, sec. 3; Howell v. Mengelsdorf, 33 Kan. 198; Pennoyer v. Neff, 95 U.S. 714; Story on Conflict of Laws, ch. 2; Rorer on Inter-State Law, ch. 22; Wheaton on International Law, p. 2, ch. 2; Smith v. McCutcheon, 38 Mo. 415; Potter's Dwarris on Statutes & Constitution, 361; Denny v. Ashley, 12 Colo. 165; Cooley, Const. Lim. [5 Ed.] 499, 500. (2) "The established rule of construction is that regulations as to the transfer of stock on the books of the corporation, whether done under a statute or under the by-laws of the corporation, are intended merely for the benefit and convenience of the corporation itself, and such regulations it has sometimes been said may even be waived by the corporation." Bank v. Cartwright, 23 Wend. 362; Bank v. Zacharie, 44 U.S. 513; Bank v. Richards, 6 Mo.App. 461; 74 Mo. 77; Sargent v. Railroad, 9 Pick. 205; Johnson v. Laflin, 103 U.S. 804; Leavitt v. Fisher, 4 Duer, 20; Bank v. McElrath, 13 N.J.Eq. 21; McNeal v. Bank, 46 N.Y. 331, 332; Bloom v. Hart, 30 La. Ann. 716, 717; People v. Elmore, 35 Cal. 653; Ins. Co. v. Goodfellow, 9 Mo. 155.
On the second day of April, 1883, in the circuit court of the city of St. Louis, plaintiff recovered judgment against the Memphis, Carthage & Northwestern Railroad Company, for $ 72,799.38; and execution on such judgment having been returned unsatisfied, that court on December 3, 1883, on motion made for that purpose, ordered and adjudged that execution issue against the defendants Seligman, on the date last mentioned. There was no appearance to this motion on the part of defendants Seligman, and it is a conceded fact that they never have been resident in this state, but have been, and still are, resident in the city of New York. Written notice of the intended application for execution and copies of the motion were served upon said defendants at their said residence.
Under the general execution thus issued, certain shares of stock, preferred and otherwise standing in the names of J. & W. Seligman & Co. on the stock books of the defendant railway company, were levied on and sold on the eighteenth day of December, 1883, as the property of the defendants Seligman, plaintiff becoming the purchaser on that day, and he, thereupon, instituted the present proceeding, which has for its object the entry of a judgment and decree of that court, compelling the defendant railway company to place the plaintiff's name on its transfer stock-books as the owner of the shares of stock described in the petition, and to permit him to exercise the usual rights incident to such ownership, and to have the right and title of the defendants Seligman decreed to be in plaintiff, by reason of his purchase aforesaid, etc.
The circuit court, on the evidence adduced at the...
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