Barthell v. Hencke

75 N.W. 952, 99 Wis. 660, 1898 Wisc. LEXIS 104

• Court: Wisconsin Supreme Court
• Decided: May 24, 1898
• Status: Published

Opinion

"Winslow, J.

Corporate stock can only be attached by leaving an attested copy of the writ with “ the clerk, treasurer, or cashier” of the corporation, if there be such an officer; otherwise with any officer or person who has custody of the books and papers of the corporation. R. S. 1878, sec. 2989. In the present case the copy was left with a man who had been legally elected secretary and treasurer. Two days prior to the service of the writ, however, meetings of both corporations had been held, and another person had been elected, who had immediately taken possession of the corporate books and papers. No sufficient notice of these meetings had been served on Charles E. Barthell, who owned one share of stock in each corporation. Therefore, although all the other stockholders were present, it seems that no legal election of new officers could be held. Upon this fact the appellant claims that Barthell was still the de jure secretary and treasurer, and so that the attachment was effective. This claim, however, cannot be sustained. Conceding that the election of the new secretary and treasurer was invalid, he still took and retained possession of the books and papers of his office, and, as to third persons, he was, to all intents and purposes, the secretary and treasurer of the corporations. The title to corporate offices cannot be tried in this way. One who is acting as officer of a corporation, and who is recognized by the corporation itself, and is in possession of his office, must be recognized as such officer by outsiders in all merely collateral proceedings. His "right can only be attacked in a direct action brought for that purpose by a stockholder or by one authorized by law to sue. People ex rel. McConville v. Hills, 1 Lans. 202; Mechanics Nat. Bank v. H. C. Burnet Mfg. Co. 32 N. J. Eq. 236; 1 Cook, Stock, § 620; 3 Thomp. Corp. § 3897.

It follows that there was no legal attachment of the defendants’ stock, and hence that no jurisdiction was obtained, and the proceedings were rightly vacated.

By the Court.— Order affirmed.