Peoples' Brewing Co. v. Bœbinger

On this Merits. As appears from our opinion on the motion to dismiss this appeal is taken from two judgments, which we shall consider separately. I. The substance of the petition,'on which the first judgment was rendered, is that the defendants Bcebinger and Auer had obtained subscriptions to the stock of plaintiff company to the amount of 800 shares of the par value of fifty dollars each, and that the list of said subscriptions had been delivered into the possession of plaintiff’s secretary ; that subsequently said Bcebinger and Auer had obtained possession of said list, through certain false pretenses, and had refused to return the same; that said list was of the value to petitioner of $40,-000, and judgment was asked condemning said defendants to deliver' said list within 24 hours from finality of judgment herein, in default of which that they be condemned in soKdo to pay to petitioner the sum of $40,000. Judgment by default was taken and confirmed according *280 to the prayer of the petition. A new trial was applied for and refused, and after the lapse of 24 hours from the signature of the judgment execution was issued against defendants for $40,000. We need not go iurther than to say that the alternative part of the judgment cannot be sustained. The allegations of the petition and the evidence on which the default was confirmed show that the list contained subscriptions by unknown persons to stock of the company to the amount of, say, $40,000, payable only as the price of 800 shares of the stock of said company, to be delivered to the subscribers on such payment, and payable only partly in cash and partly at certain deferred periods. Manifestly the utmost consequence which the law could attach to the defendants’ abstraction and non-delivery of the list could not exceed a personal obligation to discharge the liabilities of the subscribers thereon in accordance with the terms of their subscriptions and the list could not have a greater value to petitioner or to anybody else than would result from such discharge. A judgment condemning them for such a default to pay $40,000 cash, and without even a reservation or recognition of their right to demand and receive a corresponding amount of stock, is certainly unsupported by any consideration of law or equity. We decide and even express an opinion upon no other question in the case except that the judgment as rendered cannot be maintained, not even suggesting whether any other, or what other, judgment might have been rendered. We think the ends of justice require that the judgment should be reversed and the case remanded for further proceedings according to law upon the default taken and without prejudice to the rights of defendants to set the same aside on filing answer. II. The foregoing decision robs the injunction proceeding from the judgment in which appeal is also taken, of all significance. We need not consider or disturb it. It is therefore ordered, adjudged and decreed that the judgment confirming the default rendered on December 2, and signed on December 16, 1887, be and the same is hereby reversed and set aside, and that the case be remanded to the court below for further proceedings on the default taken without prejudice to the rights of defendants to set the same aside on filing answer. It is further ordered and decreed that the judgment in the injunction proceeding be affirmed — costs of appeal to be divided between appellants and appellee.