(205 P.) if the entry of the judgment on the verdict or decision be stayed, then before such entry is Inade, a memorandum of the items of his costs and necessary disbursements in the action or proceeding, which memorandum must be verified by the oath of the party, or his attorney or agent, or by the clerk of his attorney, stating that to the best of his knowledge and belief the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding. A party dissatisfied with the costs claimed may, within five days after notice of filing of the bill of costs, file a motion to have the same taxed by the court in which the judgment was rendered, or by the judge thereof at chambers." Section 7048 provides: [1, 2] In State v. Ritchie, Judge, 32 Utah, 394, 91 Pac. 24, this court, in following the decisions in prior cases, held that in mandamus proceedings against a judge or public officer costs are in the discretion of the court. That has been the uniform holding and practice of this court for more than 15 years. Moreover, the practice in this court in taxing and serving costs bills, whether original or appellate, has been in accordance with the provisions of section 7048, and not in accordance with section 7047, as now contended by plaintiffs' counsel. A mere cursory reading of section 7047, we think, shows that it was intended to apply to actions determined in the district courts, that is, in trial courts, and that section 7048 was intended to apply to this court. True, that section applies more particularly to appeal cases, but if section 7046 is read in connection with section 7048, as it must be, it is clear that the portion of section 7046 ap "Whenever costs are awarded to a party by an appellate court, if such party claims costs, he shall, within thirty days after the remittitur is filed with the clerk below, serve upon the opposite party a memorandum of his costs, verified as prescribed by law, and deliver the same to the clerk of the court below: Pro-plies to special proceedings like the one at vided, that if a remittitur be filed by the party bar precisely the same as to appellate proNor is there the slightest reason against whom the costs are awarded, that par- ceedings. ty shall serve written notice of the filing there- why the provisions of sections 7046 and 7048 of on the party to whom the costs are awarded, should not apply to special proceedings in and the period for filing the cost bill shall be- this court. To adopt plaintiffs' contention gin to run with the service of such notice. would necessarily lead to confusion and conThe cost to be awarded to a party as provid-flict, in that there would be one kind of proed in this and the preceding sections shall incedure in one class of cases before this court clude the reasonable cost of printing transcripts and a different kind in another class, withand briefs, and of transcribing the stenographer's notes or minutes of the trial or hear-out any valid reason for such difference. ing. The opposite party may, within ten days Moreover, it would entirely ignore the longafter service of the memorandum of costs, upon settled practice of this court in serving cost notice given, move the court below to correct bills. the bill of costs as in other cases. Upon the decision of the motion, the clerk shall forthwith attach the memorandum of costs to the remittitur, and annex both to the judgment roll, and enter minutes of his doings in the judg-bring the matter to the attention of this ment docket. Thereafter the judgment of the court, and may obtain such an order or direction as the "nature of the case" reappellate court shall constitute and stand as the judgment of the court below and become a quires. lien upon the real property of the party against whom the costs are awarded, with the right of execution therefor as in other cases." If a party desires the judgment of this court with respect to the taxing of costs under peculiar circumstances he may, no doubt, The writer has carefully gone over the statutes of both California and Montana, from which states our sections referred to and others relating to costs are principal Section 7401, which relates to a proceed-ly taken, and he has found nothing which ing in mandamus, reads as follows: "If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury, or as may be determined by the court or referees, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue, and a peremptory mandate must also be awarded without delay." in any way conflicts with the former practice of this court or with the views herein expressed. The motion to disallow costs should therefore be, and the same is, accordingly, denied. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur. (59 Utah, 497) PARDEE v. NELSON et ux. (No. 3688.) Supreme Court of Utah. Feb. 15, 1922.) 1. Trover and conversion 2-Unindorsed certificate of stock held not subject of conversion. Where a certificate of stock belonging to one who had not indorsed the certificate was dei.vered by the company to another, his retention of possession after demand by the owner did not constitute a conversion, as he could not appropriate the stock to his own use without the owner's indorsement. 2. Yrover and conversion 70-Title passes on satisfaction of judgment. When plaintiff in conversion recovers judgment and obtains satisfaction thereof, defendant succeeds to plaintiff's title. sen, or any other person; that the certificate was not delivered to said Martinsen, nor has said Martinsen ever demanded the same; that said Nelson has retained possession of the same under claim of right until he should be released from all liability upon a certain promissory note executed by him for Martinsen's accommodation and indorsed by Martinsen to the Utah State National Bank, which bank now holds the same; that said H. L. Nelson had no right, nor was he authorized by said Martinsen to retain, said certificate until relieved from said liability; that on May 12, 1920, Martinsen sold, assigned, and transferred to the plaintiff said stock and the certificate therefor, and plaintiff at various times prior to commencing this suit demanded of said H. L. Nelson that he deliver said certificate to plaintiff, but Appeal from Third District Court, Salt that said Nelson refused to do so until reLake County; G. A. Iverson, Judge. Action by James D. Pardee against Hyrum L. Nelson and wife. From a judgment for costs only against the named defendant and dismissing the action against defendant wife, plaintiff appeals. Affirmed. lieved from liability on said promissory note; that said defendant H. L. Nelson has never claimed to own said stock or asserted any right or interest in regard thereto other than to retain said certificate in his possession as aforesaid, and has never exercised, or sought to exercise, any right or claim as Evans & Sullivan, of Salt Lake City, for a stockholder in said corporation; that appellant. plaintiff has at no time exercised, or sought James Ingebretsen and Fisher Harris, both to exercise, any right as a stockholder in of Salt Lake City, for respondents. THURMAN, J. Plaintiff brought this action in the district court of Salt Lake county for the conversion of certain shares of the capital stock of the Pingree Sugar Company, a corporation, and for the certificate of stock representing said shares. The complaint is in the usual form for conversion, where the defendant comes rightfully into possession of property, but wrongfully withholds it after proper demand by the owner. The defendants, answering, denied the conversion, but admitted that defendant H. L. Nelson held a certificate for eight shares of said stock issued in the name of John E. Martinsen without any assignment or indorsement thereon. It is unnecessary in this connection to state the purpose alleged for withholding said stock, as the same will appear in the findings of the court, the substance of which will be hereinafter stated. The trial court to whom the case was tried without a jury found, in effect, that prior to May, 1920, defendant H. L. Nelson, with funds belonging to John E. Martinsen, purchased for Martinsen eight shares of the stock in question and caused it to be registered in Martinsen's name on the books of the company; that the company delivered to said Nelson for Martinsen a certificate for said shares, certifying that Martinsen was the owner of eight shares of the capital stock of said company; that said certificate was not, and had never been, indorsed by Martin said corporation; that the value of said shares on the date of plaintiff's demand cannot be determined from the evidence, and that the value of the certificate was not in excess of $1. Finally, the court finds that subsequent to May 12, 1920, and prior to the commencement of the action, plaintiff demanded of defendant Ida L. Nelson that she surrender said certificate to him, but said certificate was not then and never has been in the possession of said defendant, and she has never asserted any dominion or control over the same, or the stock represented thereby. As conclusions of law the court found that the defendant H. L. Nelson converted the certificate of stock to his own use, and that plaintiff, as to him, was entitled to his costs. The court further found that as to the defendant Ida L. Nelson plaintiff was entitled to nothing, and that the action against her should be dismissed. Judgment was entered in accordance with the findings, and plaintiff appeals to this court for a reversal of the judgment. [1, 2] It is not necessary to enter into a detailed statement of the facts disclosed by the evidence. It is sufficient to say that for all practical purposes in determining the issues presented the evidence sustains the findings of the trial court, and in that regard nothing further need be said in this connection. The substantial question to be determined and the one which in our judgment is controlling in the case is, Did the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (205 P.) court err in not finding that either one or [ 51 Am. Rep. 91, cited by respondents. The both of the defendants had converted the shares of stock? This, under the facts found by the court, as well as under the facts disclosed by the record, is a pure question of law to be determined by the law of conversion as applied to cases similar or analogous to the case at bar. It will not be necessary to enter upon an elaborate discussion of the elementary principles of the law of conversion. Counsel for appellant have caned our attention to Fletcher's Cyc. Corps. vol. 5, 8 3446, which says: "What Constitutes a Conversion-General Principles. Any act of dominion wrongfully exerted over another's property, in denial of his right, or inconsistent with it, may be treated as a conversion; and this is just as true of shares of stock as it is of other property." The excerpt quoted is a general statement of what in law constitutes conversion. Like all general statements made by text-writers of the law relative to particular subjects, they should be read in the light of the cases to which they refer in support of the text. If that is done in respect to the language quoted from Fletcher, it will be found that not one case is cited bearing the slightest resemblance to the case before the court. As an illustration of how liable counsel are to misapply the doctrine of a given case or text and unwittingly distort its real meaning, scope, and effect, counsel for appellant assert that "This question has been fully settled by the court," and that "it seems unnecessary to look elsewhere for the law on this proposition." facts of the case and conclusions of the court The plaintiff's action was grounded on the fact that defendant had retained his certificate and refused to surrender it on demand. The jury found in favor of plaintiff for the market value of the stock. Defendant appealed. The case as stated by the appellate court involved three questions to be determined: They then refer to Coray v. Perry Irriga- (1) Whether trover would lie for a certificate tion Co., 50 Utah, 70, 166 Pac. 672, in sup- of corporate stock; (2) if it would lie, whethport of the assertion. In connection wither a conversion was sufficiently established; that case they also refer to certain language (3) whether the damages are to be measured in the opinion quoted from Kuhn v. McAl- by the market value of the stock. lister, 1 Utah, 274. It is needless to say that neither of these cases sheds any light upon the vital question presented here. The most that can be said of them is that they hold that shares of stock in a corporation are the subject of conversion where they are wrongfully taken or withheld from the owner and appropriated to the use of another. If that were the question before the court, the cases cited would be controlling. Here we have to deal with a question entirely different. The defendants in this case had no power to ap propriate the shares to their own use or to the use of another, for the certificate was not indorsed by Martinsen. For the same reason plaintiff was not and could not be deprived of his property, notwithstanding there may have been some interference therewith for which in a proper proceeding he might have been entitled to damages especially as against the defendant H. L. Nelson. The court is of opinion that this case comes within the principle announced in Daggett v. Davis, 53 Mich. 35, 18 N. W. 548, The court then proceeded to determine the first question presented, and reached the conclusion that the action would lie either for shares of stock or for the certificates representing such shares, where the certificate is wrongfully used for such purpose. As to the second question, the court held that there could be no conversion, for the reason that, although the defendant had the certificate in his possession, he could make no use of it, as it stood in the name of the plaintiff, and could not be transferred with out his indorsement. Numerous cases are cited by the court. As to the third question, the court said: "But the court erred in holding that if a conversion was made out the plaintiff was entitled to recover the market value of the shares. As the plaintiff has all the while remained, and still will not by the recovery become owner, the is, the owner of the shares, and the defendant error seems very plain." The judgment was reversed, and the cause remanded for a new trial. As the The analogy between that case and the tain mortgage given by Thomas to the ascase at bar is close enough for all practical sociation for $500, and refused to make the purposes to almost make it a case in point. transfer except subject to the mortgage and Indeed, the cases are identical in principle until the indebtedness and interest thereon in every respect except the single fact that was paid. The plaintiff, without making furin the Michigan case the plaintiff was a ther demand, immediately instituted suit for stockholder on the books of the corporation, conversion of the certificate and shares of but did not have possession of the certifi-stock. Defendant denied the conversion, and cate, while here plaintiff was a stockholder set up the foregoing facts. It also tendered by assignment from the owner, and was al-back the certificate of stock and fees which so without possession of the certificate. had been paid for the transfer, but the tenPlaintiff in the Michigan case, without his der was refused. Judgment was entered for certificate, had no power to sell, dispose defendant, and plaintiff appealed. of, or transfer his stock in the usual way, opinion is brief, we quote it at length: and consequently was, by the wrongful act of defendant, deprived of that complete dominion over his property which it is contended in the instant case constitutes conversion. The only palpable way in the Michigan case by which the plaintiff could have sold or disposed of his stock, if the purchaser was willing to take the risk, would have been to indemnify the purchaser against the contingency of some one presenting the outstanding certificate with a forged indorsement. The plaintiff in the instant case, by a like indemnity to the company, might have procured a certificate to himself upon presenting his assignment from Martinsen, the former owner. It is evident therefore that the language of the excerpt quoted from Fletcher, col. 5, § 3446, cannot be literally applied to the case at bar without running counter to the rule promulgated by the Mich igan court. In disposing of the third question involved in the Michigan case the court strongly intimates that one reason why the plaintiff was not entitled to recover the full value of the shares was that the defendant by such recovery would not become the owner. This suggestion of the court is in full accord with what the writer has always supposed was an unchallenged rule in cases of conversion. That is to say, when the plaintiff in conversion recovers judgment and obtains satisfaction thereof the defendant succeeds to the plaintiff's title. An unindorsed certificate did not and could not give the possession the defendant should have in order to constitute a conversion of the shares. It was sufficient as far as the certificate was concerned and the trial court so found. The case of Daggett v. Davis, supra, was followed and relied on by the Supreme Court of Nebraska in the case of Cummins v. People's Bldg. Loan & Sav. Ass'n, 61 Neb. 728, 86 N. W. 474. In that case the plaintiff purchased a certificate for certain shares in the corporation from one Thomas, who duly indorsed the same. The plaintiff transmitted the certificate, together with the proper fee, to the secretary of the association, and demanded that he enter a transfer on the books of the corporation. The secretary replied to the effect that the certificate was security under the articles of association for a cer ed. There was no evidence to sustain a finding "The judgment was right, and must be affirmof even a technical conversion of either the stock itself, or of the certificate which evidenced it. There is no claim that plaintiff has ever been deprived of any of his rights as a shareholder in the corporation. There could be no conversion of the stock itself, though defendant had the certificate in its possession, for it was indorsed from Thomas to plaintiff, and defendant could therefore not make use of it, for it did not have plaintiff's indorsement. Defendant came rightfully into possession of the certificate, and could not have converted it, for no demand or refusal was pleaded or proved, nor was any other evidence offered tending to show a conversion of the certificate or of the stock itself. Daggett v. Davis, 53 Mich. 35, and cases there cited. As the case was for the conversion of the stock and certificate, plaintiff's claim that he should have recovered at least for the money advanced defendant for transfer fee and dues is not well taken. That question was not in issue, the suit being strictly for conversion of the certificate and stock. The judgment of the lower court is therefore affirmed." As we read the opinion, the court decided the case on two distinct grounds, either of which was sufficient and complete in itself: (1) On the grounds which controlled in the Michigan case (Daggett v. Davis); and (2) on the ground that there was no demand by plaintiff before entering suit. The Michigan case is followed almost literally, and cited as authority. It does seem to us that the logic of these two cases is incontrovertible, and that it applies with equal force to the case at bar. There is no claim in this case that plaintiff was ever deprived of any of his rights as a shareholder in the corporation, or that he made any attempt to exercise such right. In that respect the position of the plaintiff in the Nebraska case was stronger than that of plaintiff in the instant case, because the plaintiff in the Nebraska case did at least attempt to obtain a transfer of the shares to himself, and was denied the right. No such attempt was made in the present case. It was stated in both cases referred to, in effect, that there could be no conversion of the shares by defendant becauses the certificate had not been indorsed. We regard this as the controlling feature of (205 P.) the instant case, as well as the cases we have reviewed at length. It seems to us that it is an utter perversion of the term "conversion" to hold that a party has converted property when he stands utterly powerless to deprive the owner of it or to appropriate it to his own use or to the use of another. Having reached the conclusion that the conduct of the defendants did not constitute a conversion of the shares of stock, it seems wholly unnecessary to prolong the discussion. The trial court found that defendant Ida L. Nelson was never at any time in possession of the certificate of stock, and that the case as to her should be dismissed. Much could be said concerning the distinction between her case and that of the other defendant, but it seems to the writer it would be loading the opinion with matter wholly unnecessary to a decision of the questions involved. For the same reason we refrain from discussing the measure of damages. The judgment of the trial court is affirmed, at appellant's cost. 1. Indictment and information 114-Allegation of former conviction before city justice of the peace does not show conviction under ordinance. An allegation in an information that the former conviction of defendant was by a city justice of the peace does not show the conviction was under a city ordinance, in view of Comp. Laws 1917, § 630, conferring jurisdiction upon city justices of the peace in statutory misdemeanors. that defining other offenses against the prohibition laws, the amendment to section 3345 (Laws 1919, c. 66) making it a felony for any person previously convicted of violating a city ordinance prohibiting manufacture, sale, keeping, or storing for sale of intoxicating liquors, but not of possessing such liquor, to violate the prohibition laws, does not make it a felony unlawfully to possess liquors after a previous conviction for violating a city ordinance which prohibited unlawful possession thereof. Appeal from District Court, Juab County; J. H. Erickson, Judge. Charles Hurst was charged with unlawfully possessing intoxicating liquor after having been previously convicted of a similar offense. From a judgment sustaining demurrer to, and motion to quash, the information, and dismissing the defendant, the State appeals. Affirmed. T. H. Burton, Co. Atty., of Nephi, for the THURMAN, J. The information filed by the district attorney charges the defendant as follows: "Charles Hurst, the defendant above-named, having heretofore, to wit, on the 16th day of August, A. D. 1921, been duly committed to this court by Charles Kryger, a justice of the peace in and for Eureka City, Juab county, Utah, acting as a committing magistrate, to answer to the charge hereinafter set forth, is accused by William B. Higgins, the district attorney of the Fifth judicial district of the state of Utah, in and for Juab county, by this information of the crime of felony, to wit, being a persistent violator of title 54 of the Compiled Laws of Utah 1917, committed as follows: "That the said Charles Hurst, at Juab county, state of Utah, on the 6th day of August, A. D. 1921, having theretofore, to wit, on the 2. Criminal law 1032(1)-Question review- 12th day of March, 1920, been duly and regued notwithstanding informality of presenta-larly convicted of willfully, unlawfully and intion waived by the parties with the consent of the court. Though neither a demurrer to the information nor a motion to quash, which assumed that the objection raised appeared on the face of the information, was sufficient to present a question which involved consideration of facts not stated in the information, that question will be reviewed where the parties themselves and the trial court waived the informality and considered matters outside of the information which were made a part of the record on appeal. 3. Criminal law 1200-Former conviction under city ordinance for possessing does not make subsequent offense of possessing a felony. tentionally having in his possession intoxicating liquors without a permit or authority of law, by and in the justice's court of Eureka City, Juab county, state of Utah, did willfully, unlawfully, knowingly, feloniously, and intentionally, have in his possession one gallon jar of intoxicating liquors, to wit, whisky, without a permit, license, or authority whatsoever. "All of whch is contrary to the form, force, and effect of the statutes of Utah, in such case made and provided, and against the peace and dignity of the state of Utah." The defendant demurred to the information for want of sufficient facts, and also on the ground that there is no statute making it a felony for having liquor in one's possession In view of the fact that Comp. Laws 1917 where the former conviction of having liquor defines the offense of unlawfully possessing in one's possession was under a city ordiintoxicating liquors in a sentence separate from nance. Upon substantially the same grounds For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |