Persing v. Reno Stock Brokerage Co.

• Citation: 96 P. 1054,30 Nev. 342
• Decision Date: 25 July 1908
• Docket Number: 1.751.
• Parties: PERSING v. RENO STOCK BROKERAGE CO.
• Court: Supreme Court of Nevada

96 P. 1054

30 Nev. 342

PERSING v. RENO STOCK BROKERAGE CO.

No. 1.751.

Supreme Court of Nevada

July 25, 1908

Appeal from District Court, Washoe County.

Action by U. G. Persing against the Reno Stock Brokerage Company, in which, after judgment, James T. Boyd was ordered to appear to testify as to property in his possession belonging to defendant. From an order vacating an order adjudging that certain property in the possession of James T. Boyd be delivered to the sheriff, plaintiff appeals. Affirmed.

Mack & Shoup, for appellant.

James T. Boyd and A. N. Salisbury, for respondent.

SWEENEY J.

On June 29, 1907, U. G. Persing, plaintiff and appellant, brought an action against the Reno Stock Brokerage Company, a corporation, defendant, to recover certain stock belonging to plaintiff, and which had been placed in the hands of the Reno Stock Brokerage Company for the purposes of sale on commission, or for the value of said stock, in case the certificates thereof could not be recovered. Plaintiff alleged in his complaint that defendant had hypothecated certain stock and converted the same to its own use without plaintiff's knowledge of consent; said stock being of the alleged market value of $7,525. Upon filing the complaint a writ of attachment was issued, and thereafter levied. The sheriff's return shows that he attached all personal property in the possession or under the control of one James T. Boyd, belonging to the Reno Stock Brokerage Company defendant, on the 20th day of June, 1907. On July 6, 1907 the Reno Stock Brokerage Company filed a demurrer to the complaint, which was overruled by the court, and the defendant failed within the time allowed to plead to file its answer, whereupon, on the 3d day of August, 1907, default was entered against defendant, and on August 8th the trial court after hearing the evidence of the plaintiff, entered judgment for plaintiff against the defendant for 1,500 shares of the Rocky Hill Gold Mining Company's stock and a money judgment for $5.495.

On August 30, 1907, Guy V. Shoup, Esq., one of the attorneys for plaintiff, filed his affidavit with the clerk of the court in effect setting forth: That James T. Boyd had in his possession and under his control an automobile belonging to the Reno Stock Brokerage Company, and prayed that Boyd be required to appear before the district court and be examined with respect to all property then in his possession or under his control belonging to the Reno Stock Brokerage Company, and particularly with respect to the said automobile. The court, upon reading the affidavit filed, made an order requiring said Boyd to appear before the court on September 7, 1907, to testify in accordance with the request in the affidavit of said Shoup. A. N. Sallsbury, Esq., was also cited. Upon September 11th the matter came on regularly for hearing before the court, Mr. Boyd appearing personally in response to the citation, and Mr. Boyd and Mr. Salisbury were sworn and testified at the instance of the plaintiff. The testimony of these gentlemen was to the effect that prior to the bringing of the suit of Persing v. Reno Stock Brokerage Company the automobile in question was delivered to Boyd as a pledge and security for certain claims, which said Boyd and several of his clients had against the Reno Stock Brokerage Company. The evidence also disclosed that there was some question whether or not the automobile belonged to A. J. Frolich, who was president and general manager of the Reno Stock Brokerage Company, or was the property of said company. The evidence disclosed, however, that Boyd had a claim against Frolich personally, and also against the Reno Stock Brokerage Company, and that said automobile, prior to the institution of said suit, was delivered into the possession of Boyd as a pledge and security for the payment of the claims against Frolich and said company, at the request of Frolich, who was the president and general manager of said company, through Mr. O'Brien, the secretary and cashier of the Reno Stock Brokerage Company, in order to stay attachment proceedings against said Frolich and said company, which were threatened to be instituted by said Boyd and Salisbury if the claims held by them were not secured. Plaintiff attempted to get possession of said automobile from Boyd, but Boyd refused to deliver the same until his claims against the machine were satisfied.

Upon the conclusion of the evidence given by Messrs. Boyd and Salisbury in this proceeding, the court made the following order: "This being the date set for hearing of the return on the order, heretofore entered by this court requiring James T. Boyd, Esq., to appear before this court and then and there be examined on oath respecting all property in his possession and under his control belonging to the defendant, Reno Stock Brokerage Company, and particularly with reference to a certain automobile referred to in the affidavit of Guy V. Shoup, Esq., on file herein, and the said James T. Boyd, Esq., appearing in person, the plaintiff also appearing by his attorneys, Messrs. Mack & Shoup, and James T. Boyd, Esq., and A. N. Salisbury, Esq., having been duly sworn and examined on oath respecting the said automobile, and it appearing to the satisfaction of the court that said James T. Boyd was in possession of said automobile on the 28th day of June, 1907, that said automobile was then in the county of Washoe, state of Nevada, that on said June 28, 1907, while the said James T. Boyd was in the possession and control of the same, a writ of attachment was duly issued out of the above-entitled action, directed to the sheriff of said county of Washoe, commanding him to attach and safely keep all property in said county belonging to the said defendant, Reno Stock Brokerage Company, a corporation, within said county not exempt from execution, and that a copy of said writ of attachment was duly served upon James T. Boyd on June 28, 1907, and on the same day the said sheriff also pursuant to instructions from plaintiff's attorneys, served upon said James T. Boyd a notice that all personal property belonging to the said defendant, Reno Stock Brokerage Company, in the possession of James T. Boyd or...