H. B. Claflin Co. v. Bretzfelder

• Decision Date: 27 April 1901
• Citation: 62 S.W. 905
• Parties: H. B. CLAFLIN CO. et al. v. BRETZFELDER.
• Court: Arkansas Supreme Court

62 S.W. 905

H. B. CLAFLIN CO. et al. v. BRETZFELDER.

Supreme Court of Arkansas.

April 27, 1901.

Appeal from Jefferson chancery court; John M. Elliott, Chancellor.

Action of interpleader by Emelia Bretzfelder against the H. B. Claflin Company and others to determine ownership of certain corporate stock. From a judgment for plaintiff, the defendants appeal. Reversed.

Crawford & Hudson, Austin & Taylor, and Reinberger & Ewing, for appellants. White & Altheimer and J. M. & J. G. Taylor, for appellee.

BATTLE, J.

The property in controversy in this action "is three hundred and forty-two shares of the capital stock of the Standard Compress & Warehouse Company [which we shall hereafter call for convenience the "Compress Stock"] originally evidenced by certificates numbered 23, 52, and 86, which were issued to Rosenberg & Miller for two hundred, one hundred, and forty-two shares, respectively; and four hundred and twenty shares of the capital stock of the Park View Land Company [which we shall hereafter call for convenience "Park View Stock"], which were originally represented by certificates numbered fifteen, sixteen, and seventeen, issued to Felix M. Rosenberg, for one hundred, sixty, and fifty shares, respectively; and certificates numbered eighteen, nineteen, and twenty, issued to Solomon Miller for one hundred, sixty, and fifty shares, respectively."

Appellants claim them by virtue of levies thereon and sales thereof under executions issued upon judgments in their favor against Felix M. Rosenberg and Solomon Miller, who composed the firm of Rosenberg & Miller, and appellee, under an order of sale issued upon a judgment sustaining an attachment in her favor against the same persons.

On the 5th day of October, 1891, Rosenberg & Miller executed to Emelia Bretzfelder, the appellee, a promissory note, and thereby promised to pay her $4,646.37, and 8 per cent. per annum interest, on the 1st day of January, 1893, and transferred and delivered to her 200 shares of the compress stock and 100 shares of the Park View stock to secure the payment of the same; but no transfer of the shares was made on the books of the corporation that issued the shares, or upon those in the office of the county clerk.

On the 3d of December, 1894, appellee, Emelia Bretzfelder, commenced an action in the Jefferson circuit court against Rosenberg & Miller, to recover of them the sum of $6,140.37, which included the amount due on the note for $4,646.37, and on the same day caused an order of attachment to be issued against their property, with a clause therein commanding the sheriff to summon the Standard Compress & Warehouse Company and the Park View Land Company to answer as garnishees in the action. This order reached the hands of the sheriff on the same day it was issued at 8:10 o'clock p. m., and he at 9 o'clock next following executed the same "by delivering a true copy thereof to A. Blum, president of the Park View Land Company, and by delivering a true copy thereof to M. W. Taggart, president of the Standard Compress & Warehouse Company, summoning the said corporations to answer as garnishees."

On March 25, 1895, the Park View Land Company filed its answer to said garnishment, in which it admitted that Felix M. Rosenberg was the owner of record of 210 of its shares of the par value of $25 each, evidenced by three certificates issued to him, all dated June 24, 1891, numbered 15, 16, and 17, for 100, 60, and 50 shares, respectively, and that Solomon Miller was the owner of record of 210 shares of its stock of the same par value, evidenced by its three certificates issued to him, also dated June 24, 1891, numbered 18, 19, and 20, for 100, 60, and 50 shares, respectively. And on the same day the Standard Compress & Warehouse Company filed its answer to said garnishment, in which it admitted that the firm of Rosenberg & Miller was the owner of record of 342 of its shares of the par value of $25 each, evidenced by three certificates issued to them, — one, No. 23, dated June 23, 1890, for 200 shares; one, No. 52, dated June 27, 1890, for 100 shares; and one, No. 86, dated June 15, 1891, for 42 shares.

On March 30, 1895, appellee recovered judgment by default against Rosenberg & Miller for the sum of $6,877.71, and at the same time the attachment was sustained, and all of the said stock in the Park View Land Company and in the Standard Compress & Warehouse Company aforesaid was condemned to be sold for the satisfaction of said judgment. The shares pledged to Emelia Bretzfelder to secure the payment of the note for $4,646.37 were included in the stock condemned to be sold. This was done because she was doubtful of the validity of the pledge on account of the failure to transfer it to her on the books of the corporations and in the clerk's office.

On the 30th of March, 1895, the appellants also recovered judgments in the same courts against the same debtors for various amounts on which they caused executions to be issued on the 19th of September, 1898. On the same day — the 19th of September, 1898 — the appellee caused a venditioni exponas to be issued on the judgment recovered by her on the 30th of March, 1895, commanding the sheriff to sell the stock in controversy to satisfy her judgment. The executions sued out by the appellants first reached the hands of the sheriff. They caused him to levy on the stock in controversy to satisfy their executions and to advertise the same for sale on the 1st of October, 1898.

Upon the issue of aforementioned writs the appellants and appellee entered into a written contract, in which the issue of said order of attachment, the recovery of said judgments, and the issue of executions thereon were recited, and they agreed as follows:

"Now, this agreement is to show that the parties mentioned therein have agreed that the said Emelia Bretzfelder shall file forthwith a bill of interpleader in the chancery court of Jefferson county, Arkansas, against all the other parties herein mentioned, by which said suit it is contemplated that the rights of the several parties mentioned herein to said stock under their said executions shall be litigated and decided. It is further stipulated by the parties hereto that they will each file their several interventions or answers in said cause, and assert their rights to said stock, or proceeds thereof, or right therein; that at said sales the said stock shall be purchased by Fred Hudson, as trustee for all the parties herein mentioned, who shall bid at such sale, if necessary, to secure a purchase of said stock at said sale, any amount not exceeding 45 per cent. of the par or face value of the said Standard Compress and Warehouse Co. stock, and not exceeding 25% of the Park View Land Co. stock; that the said Fred Hudson shall hold the said stock so purchased as trustee for the parties herein mentioned as their rights shall hereafter be established by the said chancery court of Jefferson, or any court of final resort to which said suit may be carried, it being understood by all the parties hereto that no rights of priority of liens upon said stock, and no right to contest the right of any other party hereto to the same, is waived or impaired by this agreement, and it being the intention of the agreement that the said stock shall be purchased by the said trustee, who shall hold the same subject to the final adjudication of the said case and the settlement of the rights of the respective parties to this agreement."

The stock in controversy was sold by the sheriff, under the executions delivered to him, on the 1st day of October, 1898, and was purchased by Fred M. Hudson, as trustee, and is now held by him in that capacity, according to...