Cann v. George B. Williams Land & Livestock Co., 3065.

• Docket Nº: 3065.
• Citation: 48 P.2d 887, 56 Nev. 242
• Case Date: September 05, 1935
• Court: Supreme Court of Nevada

48 P.2d 887

56 Nev. 242

CANN
v.
GEORGE B. WILLIAMS LAND & LIVESTOCK CO.

No. 3065.

Supreme Court of Nevada

September 5, 1935

Appeal from District Court, Churchill County; Edgar Eather, Judge.

Action by Eli Cann against the George B. Williams Land & Livestock Company. From a judgment of nonsuit, and from an order denying a new trial, plaintiff appeals.

Judgment and order reversed, and cause remanded for new trial. [48 P.2d 889]

Brown & Belford, of Reno, and A. L. Haight, of Fallon, for appellant.

Platt & Sinai, of Reno, for respondent.

TABER, Justice.

This is an appeal from a judgment of nonsuit, and from an order denying a new trial, in an action in the First judicial district court, in and for Churchill county, wherein appellant, Eli Cann, was plaintiff, and respondent, George B. Williams Land & Livestock Company, defendant.

On January 12, 1982, in the district court of the Eighth (now the First) judicial district, in and for the county of Churchill, Eli Cann recovered a judgment against George B. Williams and M. Genevieve Williams for the sum of $12,498.26, with interest and costs. In the spring of the same year execution was issued, in pursuance of which the sheriff levied upon and sold, along with other property, "all the right title and interest" of said George B. Williams in and to 5 shares of the capital stock of respondent company, "all the right title and interest" of said M. Genevieve Williams in and to 7 shares of the capital stock of said corporation and "all the right title and interest" of said George B. Williams in and to 1,350 shares of the capital stock of said corporation. Appellant, Eli Cann, was the purchaser at the execution sales of said capital stock--1,355 shares of which, it is claimed by him, were standing on the books of said company in the name of said George B. Williams, the remaining 7 shares standing in the name of said M. Genevieve Williams. Said George B. Williams was president of the corporation and said M. Genevieve Williams its secretary. Certificates of sale of said capital stock were given by the sheriff to appellant, who claims that on May 31, 1932, he demanded of said corporation that a new certificate or certificates for said 1,362 shares be issued to him, and transferred to him on the books of the corporation. This demand, according to appellant, was met by a refusal. Thereafter appellant brought this action in said district court against respondent corporation for the conversion of said 1,362 shares of its capital stock. The case was tried in November, 1933. At the conclusion of appellant's case in chief, respondent moved for a nonsuit. The court, after hearing argument on the motion, reserved its decision thereon, and requested counsel for respondent to go on with the case. After calling two witnesses for the respondent and recalling appellant, respondent rested and renewed its motion for a nonsuit. On January 7, 1933, the district court filed its written decision granting the motion for a nonsuit. Notice of intention to move for a new trial was served January 14, 1933, and filed January 16, 1933. On January 19, 1933, the court filed its judgment, dismissing appellant's action. On July 5, 1933, the court filed its written decision denying appellant's motion for a new trial. The case comes before this court on appeal from said judgment, and from the order denying the motion for new trial.

There were two execution sales in the case of Eli Cann against George B. Williams and M. Genevieve Williams. At the first of these sales on April 19, 1932, the sheriff sold to appellant, along with other property, 5 shares of the capital stock of said corporation standing in the name of George B. Williams, and 7 shares of the capital stock of said corporation standing in the name of M. Genevieve Williams. At the second sale on May 18, 1932, the sheriff sold to appellant, along with other property, "all the right title and interest" of George B. Williams and M. Genevieve Williams in and to 1,350 shares of the capital stock of said corporation, represented by certificate No. 6, and claimed by appellant to have belonged, before said last mentioned sale, to George B. Williams. Between the dates of said two execution sales, appellant instituted proceedings supplementary to execution under the provisions of chapter 43 of the Civil Practice Act (N. C. L. § 8863 et seq.). In the course of said proceedings George B. Williams and M. Genevieve Williams, judgment debtors as aforesaid, appeared and answered upon oath concerning their property. On June 6, 1932, the district judge signed an order, under the provisions of section 8869, N. C. L., authorizing appellant to institute one or more actions against George B. Williams Land & Livestock Company and three other persons for the recovery of said 1,350 shares of capital stock, alleged by appellant to have been standing on the books of said corporation in the name of George B. Williams, and other shares of the capital stock of said corporation, alleged to have been [48 P.2d 890] standing on the books in the names of and claimed by, respectively, said other three persons. Two days afterwards, to wit, on June 8, 1932, appellant commenced this action in trover against said corporation in said district court, demanding a money judgment for the conversion of said 5 shares, 7 shares, and 1,350 shares, respectively, hereinbefore mentioned.

Before the execution sales, counsel for respondent notified the sheriff by letter that neither George B. Williams nor M. Genevieve Williams owned any interest in said 1,350 shares, which, he stated, were the property of respondent.

In the course of the supplementary proceedings hereinbefore mentioned, it developed that on certificate No. 6 the following appeared: "Cancelled 11/8/27 in pay't of $135,000.00 debt. See certificate No. 16."

Appellant claims that, before the execution sales, 7 shares of the 1,362 alleged in this action to have been converted by said corporation belonged to M. Genevieve Williams, and that the remaining 1,355 shares belonged to George B. Williams. After said execution sales, and until the alleged conversion, appellant claims that he was the owner of all said 1,362 shares. After respondent's alleged refusal to issue new certificates of stock to appellant and transfer same on the books of the corporation, appellant commenced this action in trover praying for a money judgment against said corporation for the value of said 1,362 shares of capital stock at the time of its alleged conversion.

Respondent takes the position that it is and at all times, since the first execution sale, has been ready and willing to issue a new certificate or certificates of stock to appellant in lieu of the said 5 and 7 shares, respectively, standing on the books of the corporation in the names of George B. Williams and M. Genevieve Williams. The remaining 1,350 shares, however, respondent claims as its own property (treasury stock), and claims that said 1,350 shares have been its sole and exclusive property ever since the 8th day of November, 1927, Respondent contends that if appellant desired to contest its claim of ownership of the stock which is the subject of this action, his exclusive remedy was that provided in section 8869, N. C. L., namely, an action "for the recovery of such interest." Appellant takes the position that the remedy provided in said section is not exclusive, and that the law entitles him to bring this action in trover to recover damages for the alleged conversion of said capital stock. On this particular question of law it is our opinion that appellant's contention is correct, and that it is supported by the weight of authority. Hulley v. Chedic, 22 Nev. 127, 36 P. 783, 786, 58 Am. St. Rep. 729; Bond v. Bulgheroni, 215 Cal. 7, 8 P.2d 130; Blake v. Blake, 86 Cal.App. 377, 260 P. 937; Phillips v. Price, 153 Cal. 146, 94 P. 617; Rapp v. Whittier, 113 Cal. 429, 45 P. 703; Gordon v. Lemp, 7 Idaho, 677, 65 P. 444; Enright v. Grant, 5 Utah, 334, 15 P. 268; Ryan v. Maxey, 14 Mont. 81, 35 P. 515; Feldenheimer v. Tressel, 6 Dak. 265, 43 N.W. 94; F. Meyer Boot & Shoe Co. v. C. Shenkberg Co., 11 S.D. 620, 80 N.W. 126; Monroe v. Reid, 46 Neb. 316, 64 N.W. 983; Poole v. French, 71 Kan. 391, 80 P. 997; Ludes v. Hood, 29 Kan. 49; Culp v. Hecht, 43 Ohio App. 430, 183 N.E. 437; In re Albright, 55 Misc. 324, 105 N.Y.S. 486; Hart v. Albright, 28 Abb. N. C. 74, 18 N.Y.S. 718; Gere v. Dibble, 17 How. Prac. (N. Y.) 31; Davis v. Turner, 4 How. Prac. (N. Y.) 190; 7 Cal. Jur. 801; 6 Bancroft's Code Prac. and Remedies, 6012, 6013; 8 R. C. L. 4, 5; 10 R. C. L. 1374; Glenn, Creditors' Rights and Remedies, p. 15, note; 6 Stand. Encyc. of Pr. cc. 185, 186; 5 Encyc. Pl. and Pr. 433; 21 Encyc. Pl. and Pr. 91, 92; note 100 Am. Dec. 502; note 90 Am. Dec. 294.

Where a statute providing a remedy does not create a new right, but merely provides a new remedy for a pre-existing right, it is ordinarily held that such remedy is not...