Parberry v. Woodson Sheep Co.

• Decision Date: 01 June 1896
• Parties: PARBERRY v. WOODSON SHEEP CO. et al. (FIRST NAT. BANK OF WHITE SULPHUR SPRINGS, Intervener).
• Court: Montana Supreme Court

45 P. 278

18 Mont. 317

PARBERRY v. WOODSON SHEEP CO. et al. (FIRST NAT. BANK OF WHITE SULPHUR SPRINGS, Intervener).

Supreme Court of Montana

June 1, 1896

Appeal from district court, Meagher county; Frank Henry, Judge.

Attachment by William Parberry against the Woodson Sheep Company and others. The First National Bank of White Sulphur Springs intervened. There was a judgment for plaintiff, and from an order denying a new trial intervener appeals. Affirmed.

This is an action by attachment, commenced in the district court of Meagher county, by the plaintiff against the defendants, on the 29th day of January, 1894, to recover the sum of $34,763.78 on certain promissory notes. The attachment affidavit is in the usual form, the last clause of it reading as follows: "And that the same is now due, and that the payment of the same is not secured by any mortgage, lien, or pledge upon real or personal property." The writ was levied upon the property belonging to the defendant sheep company, and is the first in point of time. The summons in the action was duly served. The sheep company appeared in the action, and demurred to plaintiff's complaint. February 24, 1894, the intervener also began an attachment suit against the Woodson Sheep Company. On the 26th day of February, 1894, the intervener filed its complaint in intervention in the case. On this last day, plaintiff was permitted to amend his affidavit in attachment. Such amendment consisted in the statement to the effect that at one time plaintiff had 125,000 shares of the capital stock of the sheep company as collateral security for his debt, and that he had returned the same to the company before commencing this suit, and further facts showing that such stock was nugatory and worthless by reason of insolvency of said sheep company; such insolvency having arisen subsequent to the original pledge of the stock by the company's incurring further indebtedness, and by reason of its disposing of part of its property, and by reason of great depreciation in value of the residue. The intervener, in its complaint of intervention, contends that, at the time plaintiff commenced his action by attachment, his claim was secured by the 125,000 shares of the capital stock mentioned above, and that, therefore, he was not entitled to his attachment. The intervener further alleges in its complaint that the defendant Woodson Sheep Company was organized about the 3d day of July, 1891, with a capital stock of $150,000 divided into 150,000 shares, of $1 each; and that, shortly after such organization, plaintiff purchased 149,997 shares of the capital stock thereof; and that a certificate therefor was thereupon duly issued and delivered to said plaintiff by said corporation; and that thereafter plaintiff made a pretended sale of 149,997 shares of said capital stock to said corporation, at the agreed price of $72,000, and received for said stock different notes, upon which he brings this action, as a part of the consideration therefor; and that the sole consideration for said notes was the transfer of said shares of stock to said defendant, but of which fact and transaction this intervener had no knowledge or intimation until long after said indebtedness of said Woodson Sheep Company to the intervener had been incurred, and by reason thereof the intervener contends that the notes sued on are null and void. The record shows that on February, 1891 the plaintiff was the owner of a large quantity of property consisting of real-estate contracts with the Northern Pacific Railroad Company for the purchase of certain railroad lands sheep, and ranch equipments, such real estate amounting to some 8,000 acres, and the personal property consisting of 14,600 head of sheep, and considerable other property. On July 3, 1891, John A. Woodson, Waller Shobe, and W. B. Baker organized the Woodson Sheep Company. On July 14th, in said year, the first meeting of said persons, as trustees of said company, was held. To complete their organization, these gentlemen issued to themselves each 1 share of the capital stock of the company, and 149,997 shares to the plaintiff. At the time the certificate for the 149,997 shares was issued to plaintiff, it had indorsed upon it an assignment or words transferring the stock to the company, which, at the request of the trustees, was immediately signed by the plaintiff, and the certificate redelivered by him to the company. The plaintiff had never subscribed for any of the stock of the company. The transaction above stated appears to have been solely at the request of the gentlemen named as trustees of said company, and for their accommodation, and without any other consideration or for any other purpose. At that time the company had not yet commenced to do business, nor had it any assets or debts. Prior to said 14th of July, there had been some negotiations between the gentlemen mentioned and the plaintiff looking to the purchase of the real and personal property of the plaintiff. Such purchase was consummated on August 14, 1891; the company paying therefor $12,280 in cash, and delivering their three notes...