Wyoming Fair Ass'n v. Talbott

• Decision Date: 30 January 1889
• Parties: WYOMING FAIR ASS'N v. TALBOTT
• Court: Wyoming Supreme Court

21 P. 700

3 Wyo. 244

WYOMING FAIR ASS'N v. TALBOTT

Supreme Court of Wyoming

January 30, 1889

Error to district court.

Action by James Talbott against the Wyoming Fair Association to compel defendant to transfer certain stock on its books. Judgment for plaintiff, and defendant brings error. Affirmed.

Judgment affirmed.

Bryan Seevers & Stewart, for plaintiff in error.

Allen Miller, for defendant in error.

SAUFLEY J.

OPINION

SAUFLEY, J

The defendant in error, James Talbott, sued the Wyoming Fair Association, alleging that on the 28th day of June, 1886, the corporation issued to Eliza Talbott a certificate for 190 shares of its capital stock, fully paid up and non-assessable, which certificate, by its terms, was transferable on the books of the company, on the return of the certificate properly indorsed; that afterwards, in October, 1886, Eliza Talbott transferred, assigned, and delivered the certificate to him, and that he had ever since been the holder and owner thereof. He further alleges that he subsequently presented the certificate, with its assignment to him indorsed thereon, to the proper officer of the association, and demanded to have the transfer made to him on the books of the company, which was refused. The defense presented by the association is found in the second paragraph of its answer, which reads thus: "The defendant says that the plaintiff ought not to maintain his action herein, because, on the 25th day of July, 1887, one Valentine Baker obtained a judgment in this court for $ 458.40 against John Talbott, the husband of Eliza Talbott, who held said certificate of stock in trust for and to the use of her said husband, and on the 19th day of December, 1887, execution was issued on said judgment, and on the 6th day of February, 1888, the sheriff of Laramie county, Wyoming territory, levied said execution upon said shares of stock, as the property of said John Talbott; and that prior to the said levy no demand had been made by the plaintiff, or any one else, upon defendant, to have said stock transferred to the plaintiff on the books of the defendant, and the defendant had no notice or knowledge that the plaintiff claimed any interest in said stock until after said levy was made." To this plea the plaintiff below filed a demurrer which was sustained by the court, and the defendant, without asking leave or offering to amend, brings the cause to this court for revision.

Section 2772, Rev. St., provides that shares of stock in any incorporated company, owned or held by a defendant in execution, or by any person in trust for or to the use of a defendant in execution, may be levied on and sold under execution in the manner prescribed by section 2774. The latter section directs that the levy shall be made by leaving a true copy of the writ with the president or other named officers of the company, and, if there be no such officer or officers, then with the resident manager or agent, and with the copy of the writ the officer levying shall also leave a certificate setting forth that he levies and takes in execution such shares to satisfy the execution. The answer is defective, both in form and substance. It will be observed that it simply states that the sheriff of Laramie county levied the execution upon said shares of stock as the property of John Talbott. It is one of the familiar rules that "a pleading must show authority," and that, when a party undertakes to...