Alta-cliff Co. v. Spurway

• Decision Date: 28 November 1933
• Citation: 113 Fla. 633,152 So. 731
• Parties: ALTA-CLIFF CO. v. SPURWAY et al.
• Court: Florida Supreme Court

152 So. 731

113 Fla. 633

ALTA-CLIFF CO. v. SPURWAY et al.

Florida Supreme Court, Division A.

November 28, 1933

On Rehearing March 1, 1934.

Bill by H. J. Spurway, as receiver of the City National Bank in Miami, a United States banking corporation, against the Alta-Cliff Company, a Florida corporation, and others. From an adverse decree, named defendant appeals.

Affirmed.

BUFORD J., dissenting.

On Petition for Rehearing. Appeal from Circuit Court, Dade County; Paul D. Barns, Judge.

COUNSEL

George Edward Holt, of Miami, for appellant.

Hudson & Cason, Pierce & Enwall, Sydney L. Weintraub, and Ben C Willard, all of Miami, for appellees.

OPINION

TERRELL Justice.

October 8, 1932, by reason of a deficiency decree in a foreclosure proceeding, appellant secured a money judgment against S. M Tatum individually and S. M. Tatum, Inc. October 28, 1932, an execution was delivered to the sheriff of Dade county, who on November 28, 1932, with a view to satisfying said judgment made demand on Belcher Oil Company and Orange State Oil Company, Florida corporations, for a written statement of the number of shares of stock held in said corporations by appellees S. M. Tatum and S. M. Tatum, Inc. This demand was made under section 2848, Revised General Statutes of 1920, section 4535, Compiled General Laws of 1927, and discloses that 2,424 shares of the stock of Orange State Oil Company of the par value of $25 and 1,000 shares of the capital stock of Belcher Oil Company of the par value of $50 were owned by S. M. Tatum, Inc. Thereafter the sheriff advertised said stock to be sold at public auction, February 6, 1933, as provided by section 2852, Revised General Statutes of 1920, section 4539, Compiled General Laws of 1927.

On February 4, 1933, two days prior to the said sale, the appellee H. J. Spurway, as receiver of the City National Bank of Miami, filed his bill of complaint to restrain the sheriff from making said sale. On February 6, 1933, a temporary restraining order was granted which on final hearing was made permanent and perpetually restrained the appellant from making the sale or from asserting any claim, right, or control over the shares of stock as thus described. The instant appeal is from that final decree.

We are called on to review the judgment below and thereby determine whether the appellant or the appellee, under the state of facts disclosed, held the superior right to the said shares of stock in Belcher Oil Company and Orange State Oil Company so advertised for sale.

Sufficient has been said as to source of appellant's claim of title in said stock. As to the appellee's claim therein, it appears that on September 17, 1930, S. M. Tatum executed his note to City National Bank of Miami for the sum of $25,000 and attached thereto as security the stock in question; the said stock having been indorsed in blank by S. M. Tatum, Inc. The note was due December 20, 1930, at which time the note nor any interest thereon had been paid, nor had action been brought to enforce payment thereon. The bank later failed, and appellee Spurway took title to the note and stock as receiver of the bank. Scott v. Armstrong, 146 U.S. 499, 13 S.Ct. 148, 36 L.Ed. 1059. In March, 1931, the Comptroller of the Currency made a 100 per cent. assessment against all outstanding stock of the bank, and on March 6, 1931, in consideration of the receiver's forebearance to sue, S. M. Tatum, Inc., owning certain shares of stock therein, further agreed to pledge the stock on which this suit arises against its liability for its stock assessment. The note provided for notice by mail before sale of the collateral attached thereto as authorized by section 6931, Compiled General Laws of 1927. Such a notice was given November 23, 1932, the sale took place December 7, 1932, and the proceeds were applied to the payment of the $25,000 note with interest and the payment of the stock assessment against S. M. Tatum, Inc. In December, 1932, Spurway demanded that the proper transfer of the stock in question be made on the books of the Belcher Oil Company and the Orange State Oil Company, but this request was refused.

It is conceded by both parties hereto that Ploof Machinery Co. v. Fourth National Bank of Florida, 67 Fla. 36, 64 So. 360, rules the question raised in this case, but appellant contends that the rule there announced was erroneous, that the reason for it has ceased, and that consequently it should now be overruled.

Sections 2847 to 2852, Revised General Statutes of 1920, sections 4534 to 4539, Compiled General Laws of 1927, under which appellant proceeded, subject the stock in a corporation to the payment of the debts of the owner of such stock. By the terms of section 4538, Compiled General Laws, supra, it is provided that the lien of the judgment creditor against such stock takes place as of the date of the levy of the proceeds as provided in section 4534, Compiled General Laws of 1927. It further provides that no transfer of said stock not then entered on the books of the corporation shall be effectual as against the levy of such process.

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