Citizens Nat'l Bank v. Consol. Glass Co..

• Decision Date: 22 April 1918
• Docket Number: No. 3590.,3590.
• Citation: 83 W.Va. 1
• Parties: Citizens National Bank v. Consolidated Glass Co. et al.
• Court: West Virginia Supreme Court

83 W.Va. 1

Citizens National Bank

v.Consolidated Glass Co. et al.

No. 3590.

Supreme Court of Appeals of West Virginia.

Submitted September 4, 1918.

Decided Octobcr 22, 1918.

1. Mandamus Administrative Duty Transfer of Corporate Stock.

By statute, sections 20, 21, 35, and 37, chapter 53, Code, the purchaser of shares of stock in a corporation, for a valuable consideration, to whom the certificates therefor have been delivered by the original owner with power of attorney authorizing the transfer thereof on the books of the corporation, is entitled to have the said shares so transferred; and when his right and title thereto are certain and have been adjudicated by a court of competent jurisdiction, mandamus will lie against the corporation and its executive officers to compel such transfer on the books of the corporation and the issue of new certificates to such purchaser. (p. 3).

2. Appearance Jurisdiction Waiver of Objection.

By appearance and answer to the merits parties to a suit pending in the court of another state thereby waive any objection to the jurisdiction of the court. (p. 7).

3. Judgment Jurisdiction of Foreign Courts Collateral Attach.

And when the record discloses the necessary jurisdictional facts the jurisdiction of such foreign court cannot be collaterally attacked in the courts of nay other state. (p. 7).

4. Corporations Jurisdiction Foreign Corporation.

When a corporation with a charter from the state authorizing it, migrates to another state and there establishes its principal offices and chief works, it thereby submits itself to the jurisdiction of the courts of that state when properly impleaded therein. (p. 8).

5. Same Suit to Compel Transfer of Stock Nature and Remedy.

A suit or proceeding brought against such corporation by a vendee of its stock to enforce the transfer thereof on its books does not involve the internal management or the exercise of visitorial power over such corporation, but simply the individual rights of the owner of the stock cognizable by the court. (p. 8).

Original mandamus by the Citizens' National Bank of Port Allegheny, Pa., against the Consolidated Class Company and others.

Peremptory writ awarded.

C. W. Catlin, E. T. England and Frank Lively, for petitioner.

Geo. S. Wallace, Philip P. Gibson and Holt, Duncan & Holt, for respondents.

Miller, Judge:

The original jurisdiction of this court by mandamus is invoked to compel respondents, the Consolidated Glass Company, and A. S. Morehouse, president, and F. F. Eiggell, treasurer, thereof, to transfer to petitioner on the books of said company four hundred and seventy eight and thirteen seventy ninths (478 13/79) shares of its capital stock, the original certificates for which were issued to defendant T. W. Camp, and by him assigned and transferred to petitioner on April 24, 1912, and the legal right and title of petitioner to which shares as against said Camp and said Glass Company, the petition and alternative writ aver, were finally adjudicated by the judgment in mandamus, and upon an issue tried upon the intervention therein by said Camp, by the Court of Common Pleas of McKcan County, Pennsylvania, affirmed by the Supreme Court of that state on writ of error prosecuted therein by said Camp, and an exemplified transcript of the record in which courts is filed with the petition and put in evidence on this hearing.

At the time of said suit and judgment in Pennsylvania, the principal office and place of business of said Glass Company, chartered under the laws of this state, were in McKean County, Pennsylvania, but later and before the judgment aforesaid was executed, its principal office and place of business, by resolution, were changed to Huntington, Cabell County, West Virginia, where it is now located and doing business. The judgment in Pennsylvania so affirmed was "that a writ of peremptory mandamus issue directed to T. W. Camp, President and J. S. Walker, Treasurer of the Consolidated Glass Company and The Consolidated Glass Company, defendants, commanding them to transfer upon the books of the Consolidated Glass Company the said 478 13/79 shares of stock represented by said certificates Nos. 40, 46, 12*2, 123, and 124, being the certificates referred to in plaintiff's petition, and to issue new certificates therefor to Citizens National Bank, Port Allegany, Pa."

The Glass Company and its present executive officers, Morehouse, president, and Eiggell, treasurer, by demurrer and by original and amended return, and the said T. W. Camp, now before the court on a rule to show cause against the issuance of the peremptory writ, by his return, not traversing the facts alleged, nevertheless challenge the jurisdiction of this court to award the peremptory writ, and oppose the granting thereof, substantially upon the grounds: First, that petitioner has a complete and adequate remedy at law for damages, or in equity, by mandatory injunction, wherefore no right to relief by mandamus: Second, that mandamus will not lie in this state to enforce the judgment in mandamus in another state, especially where such judgment is based on a statute.

On the first proposition, this is not a suit or proceeding to enforce as against the Glass Company and its executive officers any contractual right, but simply the ministerial duty, where the right is clear, imposed by statute. The statutes covering the subject are sections 20, 21, 35, and 37, of chapter 53, of the Code. By section 20, shares of stock in a corporation are personal property, and as such pass by assignment of the stockholder to the transferree; section 21, requires the corporation to keep a transfer book in which the shares shall be transferred under such regulations as may be prescribed by the by-laws or vote of the board of directors. Section 35, requires the board of directors when demanded to issue to any person appearing on the books of the corporation to be the owner, a certificate for the shares of stock standing in his name; and lastly, section 37, provides that if a stockholder for a valuable consideration disposes of his shares, or any part thereof, to another and deliver to him a certificate for such shares with power of attorney authorizing the transfer thereof on the books of the corporation, the title of the seller shall vest in the purchaser so far as may be necessary to effect the sale or disposition thereof". The petitioner in the present case is possessed of all the muniments of title to the stock described in the statute; he has the original certificates issued to Camp with power of attorney to transfer the shares called for on the books of the defendant company. This was all it was required to show to entitle it to have these shares transferred to it on the stock books of the corporation. Lipscomb v. Condon, 56 W. Va. 416, 436.

Besides this evidence of its right and title to the stock, and its right to have the same transferred and new certificates issued to it, its rights were fully and finally adjudicated by the consideration and judgment of the Pennsylvania courts of original and appellate jurisdiction, estopping not only the defendant company and its executive officers, but also Camp himself, intervenor and claimant thereof, so that by statute and by judgment of courts with jurisdiction of the subject matter and of the parties, the right of the petitioner is clear and can not now be controverted.

But it is contended that regardless of the absolute right thus established mandamus will not go to compel officers of a private corporation to respect such rights of a stockholder, law or equity affording complete and adequate remedy. It is conceded, that by the general rule of the greater number of judicial decisions mandamus is not available in such cases, especially where the right is doubtful, and law or equity will in fact afford adequate relief, unless the subject is controlled by some positive statute on the subject. But the foundation of this rule, and the grounds for the decisions supporting it, dating back to the common law, is that an action at law for damages for the conversion of the stock will afford such complete and adequate remedy; or if not relievable in a court of law, that equity, where the pro- ceedings are more flexible and better adapted to the relief sought and where all parties in interest may be impleaded, is the proper forum. 1 Cook on Stock and Stockholders, (3rd ed.) sections 390-392. One of the reasons assigned for the rule denying mandamus is that where there is conflict of title or doubt as to the right, the corporation may properly refuse to register and transfer its shares of stock to the holder of the certificates, until the right has been settled or adjudicated by interpleader or otherwise. 1 Cook on Stock and Stockholders, (3rd ed.) sections 385-387. Notwithstanding the larger number of judicial decisions there can be no doubt that the tendency of the more recent decisions is to mollify the older and more rigid rule. 2 Bailey on Habeas Corpus, (1913) section 303; 1 Cook on Stock and Stockholders, (3rd ed.) section 390. The old theory that mandamus was the King's prerogative writ, and limited to commanding public officers in the performance of their official and ministerial duties no longer obtains, certainly not in this jurisdiction. Its scope and office has been greatly extended and enlarged in many instances not only by legislative action but by the courts, so that now in modern practice it is regarded as nothing more than an action at law between the parties, and not as a prerogative writ. Fisher v. City of Charleston, 17 W. Va. 595, 604; Hogg's Pleading and Forms, p. 477, (note).

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