McAllister v. Kuhn

*89 Mr. Chief Justice Waite delivered the opinion of the court. Upon a writ of error to reverse a judgment by'default, such defects in the declaration or complaint as could have been taken advantage- of before judgment by general demurrer may be 'brought under review. If. the judgment would have been arrested on motion, if made, because the declaration did not ' state facts sufficient to constitute a cause of action, it may be reversed for the same reason upon error. In this case, the complainant alleges a wrongful conversion by McAllister to his own use of certain shares of the capital stock of a foreign corporation owned by Kuhn, which were repre*sented by certificates of stock that had come into the possession of McAllister. There can be no doubt that shares of stock in a corporation may be transferred by means of an assignment and delivery of certificates. It is-true that a certificate of stock is not the stock itself; but it is documentary evidence of title to stock, and may "be used for the purposes of symbolical delivery, as the stock itself is incapable of actual delivery. A blank indorsement of a certificate may be filled up by writing an assignment and power of attorney over the signature indorsed, • and in this way an actual trarisfer of the stock on the books of the corporation may be perfected. A wrongful use-of such an indorsed certificate for such a purpose may operate' as a conversion of the stock. If the statements contained in the petition are true, and McAllister had actually converted the stock to his own use, Kuhn was entitled to his damages. By his default, whatever had been properly pleaded was confessed. Had issue been joined upon the averment of conversion, it would have been necessary to show the • existence of facts which in law constituted a conversion; but, for the purposes- of pleading, the ultimate fact to be proven need only be stated. The cif'c'om-. stances which tend to prove the ultimate fact can be used for the purposes of evidence, but they have no place in the pleadings. We think'the complaint- does state all the facts necessary to constitute a cause of action. By the Code off'Practice in Utah, the failure of McAllister to appear at the time of the assessment of damages was a waiver by him of an assessment by a jury. *90 This court has no power to re-examine the action of the territorial courts in , ref using to sét aside the judgment by default. We find no error in the-record. Judgment affirmed-