Bante v. Bante Development Co.

• Decision Date: 06 August 1929
• Docket Number: 28019
• Citation: 19 S.W.2d 641,323 Mo. 649
• Parties: Anna Bante, Executrix under Last Will of Henry F. Bante alias H. F. Etnab, v. Bante Development Company, H. A. Schmiemeier, Secretary of Bante Development Company, and Louis Bante, Appellants
• Court: Missouri Supreme Court

19 S.W.2d 641

323 Mo. 649

Anna Bante, Executrix under Last Will of Henry F. Bante alias H. F. Etnab, v. Bante Development Company, H. A. Schmiemeier, Secretary of Bante Development Company, and Louis Bante, Appellants

No. 28019

Supreme Court of Missouri

August 6, 1929

Appeal from Circuit Court of City of St. Louis; Hon. John W Calhoun, Judge.

Transferred to St. Louis Court of Appeals.

C L. Shotwell for appellant.

R M. Zeppenfeld for respondent.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

This is a suit in equity against defendant corporation and its secretary and a transferee of its stock to declare an alleged transfer of its stock fraudulent and illegal, and to compel said corporation to transfer to plaintiff, as executrix of Henry F. Bante, deceased, shares of stock alleged to have been owned by said Henry F. Bante at his decease. From a decree and judgment in favor of plaintiff as said executrix, defendants appealed.

We are at once confronted, on the record before us, with the question of the appellate jurisdiction of this court. We need not summarize the petition further than to say that it alleges that the Bante Development Company, an Oklahoma corporation, issued to Henry F. Bante seven certificates, aggregating 222 shares of its stock, and that he was the legal holder and owner of same at the time of his death on January 1, 1924, and that the executrix tendered same to the secretary of said corporation, for surrender, transfer and issuance of new certificates to her as executrix, but that the secretary declined to issue same; that the secretary, without the presentation, indorsement or assignment of said certificates, made an entry on the stock transfer register of said company, purporting to legally transfer said shares of stock to Louis Bante, but the entry was not bona fide and was made for the purpose of defrauding plaintiff.

The petition further states that the stock has no market value, and that its real and prospective value depends upon the further development and management of the enterprise, and that plaintiff could not be commensurably satisfied by a judgment for damages for the value of the stock.

The prayer of the petition asks the finding that the purported transfer of said stock to Louis Bante be declared fraudulent and illegal, and be canceled and held null and void, and that the secretary be required to transfer the stock to plaintiff as executrix, and that new certificates be issued to her as executrix, and that plaintiff's name as executrix and holder of said stock be entered upon the book containing the names of defendant company stockholders.

The answer comprised a general denial, and a plea that, at a certain meeting of said corporation, Henry F. Bante advised the directors that he had sold the stock represented by said corporation's certificates of stock numbered one, nine and ten, and requested that they be transferred on the books of said corporation to defendant Louis Bante; that the secretary so transferred said stock; that said stock now stands on the books of said corporation in the name of defendant Louis Bante, who claims to be the actual owner thereof and to be legally and equitably entitled thereto. The reply was a general denial.

The decree, in substance, makes a finding of fraud, and orders the secretary to transfer the seven certificates of stock of said company, aggregating 222 shares, to plaintiff as executrix.

The evidence relating to the value of the amount in dispute reads:

"Q. What is the par value of the stock? A. It has none. The par value, I believe, is a hundred dollars. . . .

"Q. And the par value is one hundred dollars? A. Yes, sir. . . .

"Q. This stock hasn't any particular market value, has it, doctor? A. No, sir. . . .

"Q. You can't tell what it is worth? A. We had an offer on the land that the stock represents. This is a company holding title to a tract of land in Oklahoma. It was to be developed and the town went up in the air and so did the property.

"Q. And it has only a prospective speculative value? A. Yes, sir; we are still holding it, still holding title to the property. It is inactive."

I. The question of our appellate jurisdiction is not raised by either plaintiff or defendants. Be that as it may our jurisdiction on appeal is limited, and we have neither the power nor the right to pass upon issues or rights of litigants that are without...