Memphis Appeal Publ'g Co. v. Pike

• Decision Date: 30 April 1872
• Citation: 56 Tenn. 697
• Parties: MEMPHIS APPEAL PUBLISHING CO. v. ALBERT PIKE.
• Court: Tennessee Supreme Court

56 Tenn. 697

MEMPHIS APPEAL PUBLISHING CO.

v.ALBERT PIKE.

Supreme Court of Tennessee.

April Term, 1872.

FROM SHELBY.

Appeal in error from the judgment of the 1st Circuit Court, September Term, 1870. C. W. HEISKELL, J.

THOMAS W. BROWN for appellant.

C. W. ADAMS, L. V. DIXON, E. C. MCDOWELL, L. H. PIKE for appellee.

NICHOLSON, C. J., delivered the opinion of the Court.

This was an application by Albert Pike before a Circuit Judge, in the first Circuit Court of Shelby county, for the writ of mandamus, to compel the Memphis Appeal Publishing Company to transfer to him on its books the stock formerly owned by J. M. Keating. The petition states that a judgment was rendered against Keating in the Supreme Court on the 2d of June, 1870, in favor of the petitioner, on which execution was issued, tested of the 1st day of the April Term, 1870, of that Court; that the execution was levied by the sheriff of Shelby county, on the 27th of July, 1870, “in due form of law upon the stock held and owned by the said J. M. Keating in the Memphis Appeal Publishing Company, together with all interest that said Keating had in said company.” The petition further states, that after advertising according to law, the sheriff, on the 15th of August, 1870, sold the said stock and interest, when petitioner became the purchaser, and having paid the amount bid, the sheriff executed to him a certificate of purchase. That on the 30th of August, 1870, he applied to F. A. Tyler, the secretary of the said publishing company, and demanded a transfer to him of the stock of said Keating; that Tyler refused to transfer said stock; and informed petitioner that said Keating had had no stock in said company since the 6th of June, 1870, on which day he transferred his stock to Toof, Phillips & Co. Petitioner alleges that the transfer of said stock on the 6th of June, 1870, by Keating to Toof, Phillips & Co., was without force and effect, the same having been made subsequent to the judgment in the Supreme Court, to-wit: on the 2d of June, 1870, on which day the execution issued thereon, bearing teste of the first Monday of April, 1870.

An alternative writ of mandamus issued on the petition, which was served on F. A. Tyler, the secretary of the company.

Defendant appeared by counsel and moved to quash the writ and petition; which motion being overruled, defendant was required to put in an answer or return to the writ within two days. Upon the failure of defendant to make answer or return, the Court ordered a peremptory mandamus to issue. Thereupon defendant moved the Court to set aside the order for a peremptorywrit, and to be allowed to file an answer, which was tendered, along with the affidavit on which the motion was based. Upon the disallowance of the motion, the defendant appealed to this Court.

Upon examination of the affidavit filed on the motion to set aside the order for a peremptory writ, we think it furnished such an excuse for having failed to answer and make return to the alternative writ within the two days allowed, as should have induced the Court to set it aside and receive the return and answer tendered, provided upon inspection of the answer it was sufficient to show that a peremptory writ should not be ordered. It is necessary, therefore, to examine the answer to determine whether the Court erred in refusing to allow the motion to set aside the order for a peremptory writ.

The first response of Tyler, the secretary of the company, assigns as a reason for his refusal to transfer Keating's stock to Pike, that Keating had assigned his stock in the company to Toof, Phillips & Co. before the purchase of it at the sheriff's sale by Pike, and that he was warned by Keating and his assignees, Toof, Phillips & Co., to take no action in the premises that would give Pike any advantage, and being of opinion upon inquiry, that Pike obtained no valid title by his purchase, he therefore refused to make the transfer.

If Pike obtained a good title to Keating's stock in the corporation, by his purchase at the sheriff's sale, he was thereby vested with a franchise in said corporation and had the right to its use and enjoyment. It was not necessary that a transfer of Keating's stock should be made on the books of the company to complete Pike's title. If the sale by the sheriff was valid, Keating was divested of his title whenever the sale was completed, and at the same instant Pike became vested with the title. But to enable Pike to exercise the franchise secured by his purchase, in accordance with the provisions of the act of incorporation and the by-laws, it was necessary that his name should appear on the books of the company as the owner of the stock. Upon the assumption, therefore, that his purchase was valid, Pike had the right to require Tyler, as the secretary of the company, to recognize his right as a stockholder, by transferring to his name the stock that had stood on the books in the name of Keating. Nor was it any legal excuse for refusing to do so, that Keating had already assigned his stock to Toof, Phillips & Co., if that assignment was made after Pike had obtained a judgment against Keating, the execution on which operated as a lien on the stock from a date anterior to the date of Keating's assignment to Toof, Phillips & Co. These elementary principles are too familiar to require the citation of authorities for their support.

It is not denied that Pike obtained his judgment against Keating in the Supreme Court on the 2d of June, 1870, and that execution issued thereon bearing teste of the first Monday of April, 1870. It is also not disputed that Keating's assignment to Toof, Phillips & Co. was made on the 6th of June, 1870. The validity of Pike's title, therefore, depends upon the two questions--first, was the stock a proper subject of a levy and sale under execution? and second, was the levy made sufficient to pass the title? It is not necessary to remark, that if the stock was subject to levy and sale under execution, it was because it had been made so by section 1487 of the Code, as follows:

Sec. 1487. “The stock in all private corporations formed under this chapter” (which treats of private corporations), “or heretofore created, or to be hereafter created by special law, are personal property and subject to levy and sale as such: the company in such case being required to make the proper entries in its stock or transfer book--but such sale will not relieve a stockholder from liabilities which had attached to him as such...