Gluck v. Chashin
| Decision Date | 27 May 1965 |
| Citation | 210 A.2d 855,42 Del.Ch. 325 |
| Court | Supreme Court of Delaware |
| Parties | Maxwell H. GLUCK et al., Defendants Below, Appellants, v. Rose B. CHASHIN et al., Plaintiffs Below, Appellees. |
Appeal from the court of Chancery in and for New Castle County.
Bruce M. Stargatt and Ben T. Castle, of Morford, Young & Conaway, Wilmington, for appellants Gluck, Schiff and Johnston, and John A. Beck, of Frost & Towers, Washington, D. C., of counsel, for appellant Johnston.
Irving Morris and Joseph A. Rosenthal of Cohen, Morris & Rosenthal, Wilmington, for appellees.
This is an appeal from the denial by the Court of Chancery of the individual defendants' motion to vacate the sequestration of shares of stock in Delaware corporations.
This is a derivative stockholders' action in which jurisdiction over the individual defendants was sought through sequestration. Purportedly seized by the ex parte order of sequestration were shares in the A. S. Beck Shoe Corporation registered in the names of the defendants, Gluck and Schiff; 109 shares of Pepsi-Cola Bottling Company of Long Island, Inc. registered in the name of the defendant, Johnston, and 7,191 Pepsi-Cola shares registered in the name of Johnston, Lemon & Co., in which partnership the individual defendant, Johnston, is a general partner. The individual defendants appeal.
All of the defendants are non-residents of the State of Delaware but there is no allegation to that effect in the complaint, although when application was made for an ex parte order of sequestration it was accompanied by an affidavit in which the non-residency of the defendants was alleged.
Appearing specially by leave of court the individual defendants moved to vacate the seizure of stock pursuant to the Vice Chancellor's order.
Initially, the defendants attack the seizure of all of the shares sequestered on the ground that the complaint is fatally defective in that it does not contain an allegation of non-residency of the defendants. Secondly, the defendant, Johnston, moves to vacate the sequestration of the shares of Pepsi-Cola standing in the name of the partnership in which he is a general partner. The basis of this motion is 6 Del.C. § 1525(b)(3), providing that a partner's right in specific partnership property is not subject to attachment or execution.
We first consider the argument based upon the failure of the complaint to contain an allegation of non-residency of defendants whose property is sought to be sequestered in order to compel an appearance.
The seizure was made pursuant to 10 Del.C. § 366(a) which provides:
In denying the motion to vacate the sequestration for failure to comply with § 366, the Vice Chancellor held that the failure of the complaint to include an allegation of non-residency had been cured by the affidavit accompanying the motion for an order of sequestration.
The argument made in opposition to the Vice Chancellor's action at first glance is an extremely narrow and technical one, but we think, nevertheless, it is proper and requries a reversal of the order refusing to vacate the order of sequestration.
In Cantor v. Sachs, 18 Del.Ch. 359, 162 A. 73, in applying what is now 10 Del.C. § 366, the Chancellor ruled that that statute undertook to provide for equity a procedure analogous to that of foreign attachment at law which had always been strictly construed by the law courts. He further held that, apart from the statute, equity in Delaware had no procedure comparable or analogous to foreign attachment. If, therefore, a complainant sought to seize in limine a defendant's property to compel an appearance or to satisfy a final decree, it was necessary that he bring his case within the plain scope of the statute, and if this was not done any seizure made must be vacated.
We think the rule in the Cantor case clearly is to the effect that no sequestration may be had in Chancery unless the plaisntiff by his complaint brings himself within the terms of the statute so as to confer upon may be had in Chancery unless the plaintiff compel an appearance. Cantor v. Sachs has been cited with approval subsequent to the date of its decision, not precisely upon the point before us, but in approval of the analogy between foreign attachment at law and sequestration in equity. Sands v. Lefcourt Realty Corp., 35 Del.Ch. 340, 117 A.2d 365.
We think, therefore, that...
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United States v. Sinclair
.... . .". This statute merely requires that the nonresidence of a defendant be apparent upon reading the complaint. In Gluck v. Chashin, 210 A.2d 855 (Del.1965), the Delaware Supreme Court held that a failure to set forth the defendant's nonresidence in the complaint was fatal to an applicati......
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Wife v. Husband
...defendant is a non-resident of Delaware within the meaning of 10 Del.C. § 366. As I read the Supreme Court opinion in Gluck v. Chasin, Del.Supr.Ct., 210 A.2d 855 (1965), it does not require a different result. The Court made plain that unless the precise requirements of the statute are met ......
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Nickson v. Filtrol Corp.
...of January 27.2 Plaintiffs reliance upon Chasin v. Gluck, 42 Del.Ch. 201, 207 A.2d 30 (1964), reversed on other grounds, 42 Del.Ch. 325, 210 A.2d 855 (1965), is misplaced because there the record failed to show that the party seeking discharge from sequestration had 'no beneficial interest ......
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