Baker v. Marshal

McMillan, J. By the Oourt So far as the paper books before us show, the court below made no findings upon the issues of fact presented by the affidavit and answer, but awarded the writ of mandamas upon the pleadings. In determining the case therefore, we must assume the truth of the defendants’ answer, and if upon the facts stated therein the plaintiff is not entitled to the writ, the judgment appealed from must be reversed. The first point made by the appellant is, that mandamus will not lie. The answer of the defendants shows that the Bridge Co. have already issued certificates of stock to Claytor for twenty-five shares, being the whole amount of the stock, (after the reduction by the company,) originally subscribed for by Baker, and including the seventeen and one half [180] shares for which he now demands certificates, and that twenty shares of such stock have been transferred by Clay-tor to the city or St. Paul for a valuable and adequate consideration. The refusal of the company to issue to the plaintiff, certificates for the stock claimed, is based upon a denial of his ownership of the stock, and the allegation of ownership in Claytor, and that the certificates of stock have already been issued to him. The plaintiff claims that the stock, at the time it was levied on, was not subject to levy under our statute ; that, therefore, the pretended levy and sale under the judgment and execution of Baker’s interest in the stock in 1858, passed nothing to Claytor the purchaser. The entire case depends upon this question, which is one of a private right to property. The Bridge Company could not be compelled to issue certificates of stock to both these claimants, and Timing ■ issued the certificate to Claytor in good faith, undercolor of title in him, we cannot in this proceeding try the question of ownership, or the validity of his title. 2 Redfield on Railways, pp. 289—90. citing Nash ex parte, 15, 2, B. 92. The authorities wo believe do not disagree, that mandamus will not lie, if the plaintiff has a specific remedy at law, or an adequate remedy equivalent thereto. Ang. & Ames on Corp. § 712. Daniel Wilkinson 2d. vs. Providence Bank 3 R. I. 22. Shipley vs. Mechanics’ Bank, 10 Johns 484. American Asylum vs. Phenix Bank, 4 Conn. 172. It has been repeatedly held, that mandamus will not lie to compel a bank to permit shares of the capital stock to bo transferred on the books, by a party claiming to be the owner, on the ground that the party had an adequate remedy by action. Rex vs. Bk of England, cited in Korlright vs. Buffalo [181] Com. Bk. 20 Wend. 94; 22 Wend. 348. Shipley vs. Mechanics Bank, 10 Johns., 484. American Asylum vs. Phenix Bank, 4 Conn. 172. Ex parte the Firemens' Insurance Co. 6 Hill 243, and authorities cited. Daniel Wilkinson 2d vs. Providence Bank, 3 Rhode Island 22. Ang. & Ames on Corp. § 710. Sargent vs. Franklin Insurance Co. 8 Pick., 90. Green, O. J. delivering the opinion of the court in Wilkinson vs. Providence Bank, cited ante, says, “the law regards bank stock as a subject of pecuniary value only, capablé of being fully compensated for in damages. The corporate rights are merely incidental to the stock, and of no value, except in connection with it.” We are unable to discover any difference in the nature of bridge and bank stocks, and are of opinion, that the remarks quoted apply with equal force here, as in the case in which they were made. If in the cases cited a remedy at law existed, certainly there can be no doubt that the plaintiff in the case at bar has such remedy; for here the bridge company not only refuses to give the certificates of stock to the plaintiff, but has actually transferred the stock on its books, and issued certificates of ownership thereof to Claytor. It is also to be observed in this case, that the rights of Qlaytor and the city of St. Paul, who are not parties to this proceeding, would be materially affected by granting the plaintiff the relief sought. There are other questions presented we need not consider at this time. Judgment reversed.