Opinion · Supreme Court of the United States
McAllister v. Kuhn
McAllister v. Kuhn, 96 U.S. 87 (1878)
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1878-01-18
- Topic
- general
*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.
Citator
UpLaw has not yet analyzed McAllister v. Kuhn. The absence of a flag is not a finding that it is good law.
- Cited by
- 49 opinions
Headnotes
- Civil Procedure — Default Judgment Upon a writ of error to reverse a judgment by default, defects in the declaration or complaint that could have been challenged before judgment by general demurrer may be brought under review; if the judgment would have been arrested on motion because the declaration did not state facts sufficient to constitute a cause of action, it may be reversed for the same reason on error.
- Business & Corporate Law — Stock — Transfer and Conversion Shares of stock in a corporation may be transferred by assignment and delivery of the certificates; although a certificate is not the stock itself, it is documentary evidence of title and may serve as symbolical delivery because the stock is incapable of actual delivery, and a wrongfully indorsed certificate may be filled in with an assignment and power of attorney so as to perfect an actual transfer on the corporation's books.
- Torts — Conversion A wrongful use of an indorsed stock certificate for the purpose of transferring the stock may operate as a conversion of the stock.
- Civil Procedure — Pleading For purposes of pleading, only the ultimate fact to be proven need be stated; the circumstances that tend to prove the ultimate fact are matters of evidence and have no place in the pleadings.
- Civil Procedure — Default — Effect of Failure to Appear By his default, a defendant confesses whatever has been properly pleaded.
- Civil Procedure — Default — Assessment of Damages Under the Code of Practice in Utah, a defendant's failure to appear at the time of the assessment of damages operates as a waiver of an assessment by a jury.
- Federal Courts & Jurisdiction — Territorial Courts The Supreme Court has no power to re-examine the action of the territorial courts in refusing to set aside a judgment by default.
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-