263 F.2d 1 (10th Cir. 1959), 5827, Brennan v. W. A. Wills, Limited

Docket Nº:5827.
Citation:263 F.2d 1
Party Name:Joseph M. BRENNAN, Appellant, v. W. A. WILLS, Ltd.; W. A. Wills; Herman Speken; William Greenberg; Herbert F. Korholz; Speken Wrecking Co.; Rock Wool Insulating Company, a Colorado corporation; and M.P.M. Investment Company, a Delaware corporation, Appellees.
Case Date:January 05, 1959
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1

263 F.2d 1 (10th Cir. 1959)

Joseph M. BRENNAN, Appellant,

v.

W. A. WILLS, Ltd.; W. A. Wills; Herman Speken; William Greenberg; Herbert F. Korholz; Speken Wrecking Co.; Rock Wool Insulating Company, a Colorado corporation; and M.P.M. Investment Company, a Delaware corporation, Appellees.

No. 5827.

United States Court of Appeals, Tenth Circuit.

January 5, 1959

Rehearing Denied Feb. 6, 1959.

Page 2

Joseph M. Brennan pro se.

V. G. Seavy, Pueblo, Colo. (Seavy & Seavy, Pueblo, Colo., was with him on the brief), for appellees.

Before BRATTON, Chief Judge, and HUXMAN and LEWIS, Circuit Judges.

BRATTON, Chief Judge.

Joseph M. Brennan instituted this action in replevin to recover possession of fifty shares of corporate stock issued by Rock Wool Insulating Company to Earl P. Melia. In the third amended complaint Rock Wool Insulating Company, W. A. Wills, Ltd., Speken Wrecking Co., M.P.M. Investing Company, W. A. Wills, Herman Speken, William Greenberg, and Herbert F. Korholz, were joined as defendants. While not pleaded in conventional manner, it is fairly apparent from the face of the pleading considered as a whole that jurisdiction of the action was predicated upon diversity of citizenship with the requisite amount in controversy. It was pleaded that plaintiff acquired his right to the stock by assignment from Melia. Judgment was entered dismissing the action upon the ground that the third amended complaint failed to show compliance with the statutes of Colorado necessary to transfer to plaintiff title to the shares of stock and that plaintiff had no title thereto.

It is the general rule in Colorado that replevin is a possessory action in which plaintiff must rely upon his own title or right of possession and not upon any defect or weakness in the position of the defendant respecting title or right of possession. Hall v. Johnson, 21 Colo. 414, 42 P. 660; Kelly v. Lewis, 38 Colo. 18, 88 P. 388; Illinois Building Co. v. Patterson, 91 Colo. 391, 15 P.2d 699; Barslund v. Anderson, 106 Colo. 238, 103 P.2d 23. And the controlling issue in replevin is the right to immediate possession of the property at the time of the institution of the action. Brown v. Driverless Car Co., 86 Colo. 216, 280, P. 488.

It is provided by statute in Colorado, C.R.S.1953, 31-9-1, that title to a certificate and to the shares of stock represented thereby can be transferred only by delivery of the certificate endorsed either in blank or to a specified person by the person appearing in the certificate to be the owner of such stock, or by delivery of the certificate and a separate written assignment of the certificate or a power of attorney to sell, assign, or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. And it is further provided by statute in that state, C.R.S.1953, 31-9-10, that an attempted transfer of title to a certificate of stock or to the shares represented thereby without delivery of such certificate shall have the effect of a promise to transfer; and that the...

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