Bank v. Byram

• Decision Date: 02 November 1889
• Citation: Bank v. Byram, 131 Ill. 92, 22 N. E. 842 (Ill. 1889)
• Parties: UNION NAT. BANK v. BYRAM.
• Court: Illinois Supreme Court

131 Ill. 92

22 N.E. 842

UNION NAT. BANK

v.BYRAM.¹

Supreme Court of Illinois.

Nov. 2, 1889.

Appeal from appellate court, first district.

Tenney, Driggs & Hawley, for appellant.

Gregory, Booth & Harlan, for appellee.

MAGRUDER, J.

This is an attachment suit brought in the superior court of Cook county on October 18, 1888, by the appellant against Nathan Corwith and Nathan Corwith, Jr.The sheriff levied the writ upon a large amount of property, and, among other things, upon 91 shares of stock in the Chicago Dock Company, a corporation organized under the laws of Illinois.The return of the sheriff shows that he delivered an attested copy of the attachment writ to the secretary of the company, an officer in charge of its books and papers.The appellee filed an interpleader, claiming to own the stock, alleging that said stock was not subject to attachment, and asking that the levy be set aside and vacated.Appellant filed its answer to the interpleader, traversing the allegations thereof.Afterwards appellee moved to set aside the levy of the writ, so far as it affected the shares of stock, on the ground that stock in a corporation is not liable to be attached under our statute.This motion was sustained, and an order was entered quashing the levy, and giving judgment against appellant for costs.This order has been affirmed by the appellate court, and from such judgment of affirmance an appeal is taken to this court.

The only question which the record presents for our consideration is this: Are shares of stock in an incorporated company subject to attachment under the laws of this state?Section 52, c. 77, Rev. St., being ‘An act in regard to judgments and decrees,’ etc., (Starr &C. Ann. St. 1410,) provides that ‘the share or interest of a stockholder in any corporation may be taken on execution, and sold as hereinafter provided.’Section 53 of the same act is as follows: ‘If the property has not been attached in the same suit, the officer shall leave an attested copy of the execution with the clerk, treasurer, or cashier of the company, if there is any such officer; otherwise, with any officer or person having the custody of the books and papers of the corporation.And the property shall be considered as seized on execution when the copy is so left, and shall be sold in like manner as goods and chattels.’Section 54 is as follows: ‘If the share is already attached in the same suit, the officer shall proceed, in seizing and selling it on the execution, in the same manner as in selling goods and chattels.’Section 57 is as follows: ‘If the shares or interest of the judgment debtor had been attached in the suit in which the execution issued, the purchaser shall be entitled to all the dividends which have accrued after the attachment.’

The language of section 53, 54, and 57 plainly indicates that the legislature intended to subject to attachment the same shares of stock which were liable to be taken on execution.The method of proceeding under the execution is made to depend upon the question whether an attachment has or has not been issued and levied in the suit.The attested copy of the execution is only to be left with the officer named in section 53 in case the stock has not been attached.By the terms of section 54, such copy is not to be left after the issue of execution, if the stock has already been attached.In the latter case the sheriff ‘shall proceed in seizing and selling’ the stock.The word ‘seizing,’ as used in section 54, refers to the exhibition of the execution by the sheriff to the officer of the company who keeps a record of the shares of the stockholders, so as to obtain a certificate of the shares of the judgment debtor, as provided in section 55.In People v. Manufacturing Co., 99 Ill. 355, it was said: ‘It is provided in section 53 that when the officer holding the execution has delivered to a proper officer of the corporation ‘an attested copy of the execution,’ the property ‘shall be considered as seized on execution;’ and this, although it has not as yet been actually seized, as it must be before sale, by means of the provisions contained in section 55; and thus a constructive levy may be accomplished before the actual seizure,-before the sheriff comes into possession of the certificate mentioned in that section.'Why does section 54 dispense with the constructive seizure mentioned in section 53, and provide only for the actual seizure specified in section 55?Because the share is ‘already attached’ in the same suit.

It is claimed that the attachment act, and the act in regard to judgments and executions, contain no provision that stock shall be subject to attachment, and that, if they do contain such provision, they provide no mode of levying an attachment upon stock.We think that an examination of the two acts will show this claim to be unfounded.The attachment act, (chapter 11, Starr &C. St. 308,) and the act in regard to judgments, etc., went into effect on the same day, July 1, 1872; the former having been approved December 23, 1871, and the latter on March 22, 1872.It is proper, therefore, to construe them together in order to determine their meaning.Section 8 of the attachment act provides that the ‘officer shall, without delay, execute such writ of attachment upon the lands, tenements, goods, chattels, rights, credits, moneys, and effects of the debtor, or upon any lands,’ etc.This provision, as well as the other provision hereafter referred to, should receive a liberal construction.Bank v. Hanchett, 16 N. E. Rep. 907;Railroad Co. v. Crane, 102 Ill. 249.Its words are comprehensive enough to include the interest of a stockholder in a corporation.It will not be questioned that an attachment may be levied upon personal property.Section 7 of the general incorporation act of this state provides that ‘the shares of stock * * * shall be deemed personal property.’Morawetz on Private Corporations says: ‘In most of the states it is provided by general law that shares in a corporation shall be treated as personal property.* * * They have been held to be ‘personal property’ subject to tax laws, and to pass as ‘personal property’ under a will.'Sections 224,225.While shares, independently of the certificates of shares, cannot be considered as either goods, wares, or merchandise, within the meaning of the statute of frauds, yet certificates of shares may be considered goods and merchandise, within the meaning of that statute.Id.§ 226.The words ‘rights' and ‘effects' can certainly be held to embrace within the scope of their signification the shares of a stockholder in an incorporated company.The rights of a shareholder are rights of contract, or, in technical language, choses in action.Such a right is ‘an equitable right to have the entire property managed in accordance with the charter, and, after the dissolution of the company, to have the assets reduced to cash and distributed.’Mor. Priv. Corp. §§ 200, 224, 225.In People v. Manufacturing Co., supra, we said: ‘The property of a stockholder consists of his right to a share in the net assets of the corporation, proportionate to the number of shares to which he has title.’Bouvier defines a ‘right’ as ‘a well-founded claim.’Whatever may be the correct definition of the word ‘rights,’ as used in section 8, it refers to some kind of property interest, which is incorporated in its character, and not to that species of property which is capable of being actually and corporeally seized by the sheriff.‘Effects' are defined to be ‘property or worldly substance,’ and as denoting ‘property in a more extensive sense than goods.’1 Bouv.LawDict. 579;1 Schouler, Pers. Prop. § 16.A share of stock cannot be regarded otherwise than as ‘property,’ nor can it be said that it is not ‘worldly substance.’By the use of the word ‘attached’ in sections 53,54, and55, as above quoted, the legislature assumed that provision had already...