Nielsen v. Rebard

By the Court, Coleman, C. J. : By this action plaintiff seeks to recover the possession of specific stock, and of dividends earned thereon. Judgment was entei-ed in the trial court as prayed, from which, as well as from an order denying a new trial, an appeal is taken. 1, 2. It is contended in this court that the amended complaint does not state a cause of action, as to which it is said, by counsel for respondent, that this point, not having been made in the trial court, should not now prevail. It is a well-recognized rule that, while courts do not look with favor upon objections of this kind when made for the first time in the appellate court (Omaha Nat. Bank v. Kiper, 60 Neb. 37, 82 N. W. 102; Phoenix v. Gardner, 13 Minn. 433 [Gil. 396]; Smith v. Dennett, 15 Minn. 86 [Gil. 59] ; Donellan v. Hardy, 57 Ind. 399), yet, if the complaint utterly fails to state a cause of action, the point may be raised at any time (Stevenson v. Lord, 15 Colo. 131, 25 Pac. 313; Van Doren v. Tjader, 1 Nev. 390, 90 Am. Dec. 498). In fact our code expressly provides! that all objections to a complaint may be waived, except as to the lack of jurisdiction and the failure of the complaint to state a cause of action. Rev. Laws, 5045. It is incumbent upon us to determine the question presented. The amended complaint, in brief, alleges that on November 23, 1914, and for a long time prior thereto, Frank P. Richardson was engaged in the stock brokerage [277] business in Goldfield, and while so engaged acted in behalf of customers in buying and selling stock upon the Goldfield and San Francisco stock exchanges, and in so doing was governed by the rules of such exchanges and the customs of brokers of Goldfield; that on the date mentioned said Richardson died intestate in the town of Goldfield. It is further averred that long prior to the date of his death the deceased had established the custom with his patrons of buying mining stocks for them upon the payment of one-third or one-half of the purchase price thereof, and depositing the said stock in his safe, the balance of the purchase price to be paid at the date of the sale of such stock, or at such times as it might be withdrawn from said safe; that the deceased had established a custom in said business, with his customers, of buying mining stocks for them and paying therefor in full, and placing the same in his safe for such purchasers, the purchasers making no payment in cash at the time, but depositing an equal amount of stock in the same company as security for the amount due upon the purchases, permitting the customers to pay the amount due, with interest, at the time of such sale or withdrawal of the stock; that such customs were the ones prevailing among the stockbrokers of Goldfield at the time. It is further alleged that on the 10th day of October, 1914, plaintiff purchased of the said Richardson 1,000. shares of the capital stock of the Jumbo Extension Mining Company,, at the price of 39 cents per share, and paid in full therefor; that on October 22, 1914, pursuant to the established custom, as alleged, the deceased purchased for plaintiff 1,000 shares of the capital stock of the Jumbo Extension Mining Company at the price of 40 cents per share, on account of which plaintiff made no cash payment, but as security for the purchase price thereof deposited with the deceased the 1,000 shares purchased by plaintiff on October 10, 1914. It is further alleged that it was the custom of the deceased and ■other brokers in Goldfield, at the time of purchasing [278] stock for patrons, in cases in which it was not paid for, to fix a limit for the payment of the balance due on such contracts; that on November 22 it was agreed between the plaintiff and deceased that the plaintiff should be given until demand therefor in which to pay for the stock, or until it should be sold, and that no demand had been made. It is further alleged in the complaint that on November 23, 1914, a special administrator was appointed as administrator of said estate and that on December 21 regular letters of administration were issued to appellant, who thereupon duly qualified, and that in pursuance thereof she came into possession of 12,100 shares of the capital stock of the Jumbo Extension Mining Company, and all of the property and assets of the said estate. It is further alleged that plaintiff filed with the clerk of the court, within the time allowed by law, his claim against said estate for the delivery of 2,000 shares of the capital stock of the Jumbo Extension Mining Company, and for a designated sum on account of dividends earned on said stock. It is further alleged that defendant, as such administratrix, refused to deliver to plaintiff said stock; that the estate of deceased is solvent; that plaintiff was served with notice of the rejection by the administratrix of the said claim, and that the time had not elapsed in which to bring this action; that the said Jumbo Extension Mining Company had declared certain dividends upon its capital stock, and that plaintiff is entitled to recover the dividends earned by said 2,000 shares of stock less the sum due on the stock purchased October 22. 3, 4. In our opinion, the amended complaint does not state a cause of action. It is not even claimed by respondent that the action is one of replevin or trover. Trover, is an action not to recover the specific thing but to recover the value of the property wrongfully converted. 21 Ency. PI. & Pr. 1012. There is no attempt to recover damages in the action; and it has been held that, to enable a plaintiff to recover in replevin, the specific [279] property sought to be recovered must be in possession of the defendant at the time of the commencement of the action (Gardner v. Brown, 22 Nev. 156, 37 Pac. 240), and there is no allegation in the complaint to the effect that defendant had possession of such stock at the time the action was commenced. 5. The only theory upon which it is urged by the counsel for respondent that the complaint states a cause of action is that it is within the rule established by the case of Krouse v. Woodward, 110 Cal. 638, 42 Pac. 1084. From a reading of that case, it seems that it was one in the nature of specific performance, prosecuted under a provision of the civil code of that state. We have no such provision in our civil code, and it is a well-established rule in this jurisdiction that shares of stock cannot be recovered in an action for specific performance unless they possess peculiar and unusual value (State v. Jumbo Ex. M. Co., 30 Nev. 198, 94 Pac. 74; Oliver v. Little, 31 Nev. 476, 103 Pac. 240; Robinson M. Co. v. Riepe, 40 Nev. 121, 161 Pac. 304), of which there is no allegation in the complaint in this action. It is clear that unless the complaint states- facts sufficient to entitle plaintiff to a decree compelling defendant to convey the- stock claimed, there can be no sufficient allegation showing a right to dividends thereupon. The complaint failing to state a cause of action, it is ordered that the judgment and order appealed from be reversed.