Mixson v. First Nat. Bank

• Decision Date: 14 July 1931
• Citation: 102 Fla. 468,136 So. 258
• Court: Florida Supreme Court
• Parties: MIXSON v. FIRST NAT. BANK OF MIAMI.

136 So. 258

102 Fla. 468

MIXSON v. FIRST NAT. BANK OF MIAMI.

Florida Supreme Court

July 14, 1931

En Banc.

Error to Circuit Court, Dade County; Uly O. Thompson, Judge.

Mandamus proceeding by the First National Bank of Miami against J. L Mixson as secretary of the Bebinger Properties, Inc. To review a judgment awarding a peremptory writ of mandamus defendant brings error.

Judgment affirmed.

ELLIS J., dissenting.

Syllabus by the Court.

SYLLABUS

Under the provision of section 2852, R. G. S., section 4539, C. G L., the transfer officer of the corporation becomes an officer of the court for the purpose of consummating the execution of judgment of the court. In other words, as the corporate stock is an intangible thing, the possession of which the sheriff is without power to deliver to the purchaser, the statute confers upon the transfer officer of the corporation the authority and duty to do that thing which the sheriff cannot do by delivering to the purchaser proper certificates of stock of the corporation and thereby prima facie divesting the judgment debtor of his property rights in such intangible property. Because of this official status being conferred by statute upon the transfer officer of the corporation, mandamus will lie to compel him to perform such official duty.

The alternative writ in mandamus proceedings must show a clear prima facie case in favor of relator. In order to make out a prima facie case, the writ should allege all the essential facts which show the duty and impose the legal obligation on the respondent to perform the acts demanded of him, as well as the facts that entitle the relator to invoke the aid of the court in compelling the performance of such duty or obligation.

A demurrer to an alternative writ of mandamus admits as true all well-pleaded allegations of fact and all fair and pertinent inferences or conclusions of fact in the writ that are not inconsistent with or repugnant to accompanying specific detailed allegations of facts and circumstances; but it does not admit conclusions of law stated in the writ.

The certificate of the transfer officer attached to and made a part of the petition, and which must be considered in connection with the alternative writ, must be construed in connection with section 6543, C. G. L., which leads us to the conclusion that these pleadings sufficiently allege the ownership of the stock to have been vested in the judgment debtor at the time of the levy.

A return to an alternative writ of mandamus should, for the purpose of making an issue, set up a positive denial of material facts as stated, or should state other facts sufficient to defeat relator's right.

A denial of matters alleged in an alternative writ of mandamus by way of inducement merely does not present a material issue. Where a portion of an answer to an alternative writ of mandamus is not responsive, but is wholly irrelevant to the allegations of the writ, such portion may be stricken on proper motion.

COUNSEL

Shutts & Bowen, Louis S. Bonsteel, and Jos. F. McPherson, all of Miami, for plaintiff in error.

Lilburn R. Railey, of Miami, for defendant in error.

OPINION

BUFORD C.J.

The writ of error in this case is to a judgment awarding peremptory writ of mandamus against plaintiff in error. It is alleged in the petition in effect that the First National Bank of Miami, Fla., petitioner, obtained a judgment against Bebinger in the sum of $24,236.27; that on June 27, 1929, execution was issued thereon and delivered to the sheriff for levy, and on the 17th day of July execution was levied on capital stock in various and sundry corporations held by the defendant Bebinger, among which was one share of stock in Bebinger Properties, Inc., held in the name of E. W. Bebinger, and so appearing on the books of said corporation. The return of the sheriff included a certificate of the secretary of the corporation, in the following language:

'I, J. L. Mixson, Secretary of Bebinger Properties, Inc., a corporation, incorporated under the laws of Florida, hereby certify that E. W. Bebinger is the holder of one share of stock in said corporation, as shown by stock book of the value of $500.00 and that same are fully paid for (are not fully paid for, there being the sum of $----- yet unpaid thereon);

'This statement is made on demand of the Sheriff of Dade County, Florida, under execution and is made under section 4534, Compiled Laws of Florida, 1927.

'[Signed] J. L. Mixson

'Secretary of Bebinger Properties, Inc., a corporation.'

The petition further alleges that pursuant to the levy notice of sale was published by the sheriff, and that pursuant to the notice sale was made by the sheriff, and the said share of stock in Bebinger Properties, Inc., was sold to the petitioner and a bill of sale conveying to the petitioner such share of stock was made by the sheriff.

It is further alleged that on the 13th day of February, 1930, the petitioner exhibited the bill of sale to Mixson, as secretary of Bebinger Properties, Inc., and demanded that Mixson, as secretary of said corporation, transfer to it the share of stock shown on the corporation books to be held in the name of E. W. Bebinger, and that Mixson refused to comply with the request.

A demurrer to the petition was overruled. A motion to quash the alternative writ was denied.

It is first contended that mandamus will not lie to require the transfer officer of a corporation to transfer stock on the books of the corporation which has been purchased at judicial sale. The authorities draw a distinction between the rights and remedies of parties purchasing stock at a judicial sale and those purchasing stock at a private sale. Under statutes of the state of Georgia in force at the time, the Supreme Court of that State in Bailey v. Strohecker, 38 Ga. 259, 95 Am. Dec. 388, outlined a state of facts similar to those here under consideration and held:

'When an attachment was levied upon fifty shares of capital stock of a corporate company, and sold at sheriff's sale, it was the duty of the sheriff to give a certificate of purchase to the highest bidder, and on presentation of such certificate to the proper officer of the corporation, it was his duty to make the necessary transfer of the stock to the purchaser on the books of the company. In such case, the sheriff does not put the purchaser in possession, but the proper officer of the corporation is, pro hac vice, a public officer under thd Code, charged with that duty, and if he refuses to do it, mandamus is the proper proceeding to compel its performance.'

To like effect is the holding in the case of Hair v. Burnell (C. C.) 106 F. 280.

Section 2852, R. G. S., section 4539, C. G. L., provides:

'Shares of stock levied upon as hereinbefore provided shall be sold in the same manner as other property levied upon. The notice of such sale shall contain a statement of the number of shares to be sold, the corporation in which said shares are held, the amount paid in thereon, and the amount unpaid. The sheriff or other officer conducting said sale shall execute to the purchaser thereat a bill of sale of said shares, and such bill of sale shall vest in the purchaser all the title of the judgment debtor; and upon the presentation of such bill of sale to the secretary or other officer controlling the transfer books of such corporation, it shall be his duty to transfer the said stock from the judgment debtor to the purchaser.'

Under this provision, the transfer officer of the corporation becomes an officer of the court for the purpose of consummating the execution of judgment of the court. In other words, as the corporate stock is an intangible thing, the possession of which the sheriff is without power to deliver to the purchaser, the statute confers upon the transfer officer of the corporation the authority and duty to do that thing which the sheriff cannot do by delivering to the purchaser proper certificates of stock of the corporation and thereby prima facie divesting the judgment debtor of his property rights in such intangible property. Because of this official status being conferred by statute upon the transfer officer of the corporation, mandamus will lie to compel him to perform such official duty.

It is next contended that...