A. C. HAIGLER, the President of THE SOUTHWESTERN PLACER GOLD MINING COMPANY, and SOUTHWESTERN PLACER GOLD MINING COMPANY, a Corporation, Appellants,
J. M. BURSON, Shareholder of THE SOUTHWESTERN PLACER GOLD MINING COMPANY, a Corporation, and FRANK DYKES, Receiver of THE SOUTHWESTERN PLACER GOLD MINING COMPANY, a Corporation, Appellees
APPEAL from an order of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Order appealed from reversed and cause remanded, with instructions.
Messrs. Flanigan & Fields, for Appellants.
Mr. Fred C. Bolen, for Appellees.
[38 Ariz. 193] LOCKWOOD, J.
This action was brought by J. M. Burson, hereinafter called plaintiff, as a minority stockholder of the Southwestern Placer Gold Mining Company, a corporation, hereinafter called the corporation, against the corporation and its president, A. C. Haigler, to recover from Haigler some 350,000 shares of stock of the Hassayampa Placer Gold Mining Company, which it was alleged were the property of the corporation, and some $900 cash paid by him to one John M. Williams from the funds of the corporation. Judgment was rendered in favor of plaintiff and a receiver of the corporation appointed to collect the stock and money covered by the judgment, and it was also provided that plaintiff recover from the corporation a reasonable attorney's fee for the prosecution of the action, which fee was afterwards determined by the court to amount to $500. A special execution was issued against Haigler to recover the property and money described in the judgment, which was returned unsatisfied by the sheriff.
Thereafter plaintiff had the following execution issued:
"Whereas, on the 16th day of July, 1928, the above named plaintiff recovered a Supplement Judgment in the Superior Court of Maricopa County, State of Arizona, against the above named defendant, to-wit: 'THE SOUTHWESTERN PLACER GOLD MINING COMPANY,' for the sum of Five-Hundred ($500.00) Dollars, taxed and allowed as attorney fees, and as now appears of record. . . .
"NOW YOU, THE SAID SHERIFF, are hereby required to make the said sum due on the said Supplement Judgment, to satisfy said Judgment out of the personal property of said debtor found in your County and belonging to
the said defendant, SOUTHWESTERN PLACER GOLD MINING COMPANY, a corporation, to-wit:
"All of the right, title and interest of the SOUTHWESTERN PLACER GOLD MINING COMPANY, [38 Ariz. 194] a corporation, in and to that certain judgment recovered in the Superior Court of the State of Arizona, In and for the County of Maricopa, in cause No. 23252. . . . and also all the right, title and interest of the said SOUTHWESTERN PLACER GOLD MINING COMPANY, a corporation, in and to said 350,000 shares of capital stock of said Hassayampa Placer Gold Mining Company, a corporation, by virtue of said Judgment above described, and make your return of this Writ within ten days after your receipt hereof, with what you have done endorsed hereon." (Italics ours.)
No person, firm or corporation was ever served with any notice of any levy, nor was the stock mentioned in the execution taken into the possession of the sheriff. He simply posted notices of sale, describing the property mentioned in the special execution, and sold the same in pursuance of such notices to plaintiff for the amount of his supplemental judgment and costs. Haigler and the corporation thereafter moved to quash the writ of execution above issued, and to vacate the sale held thereunder, which motion was denied, and from the order denying this appeal is taken.
It will be noticed that the execution in question was levied on "all of the right, title and interest of the Southwestern Placer Gold Mining Company, a corporation, in and to that certain Judgment recovered in the Superior Court of the State of Arizona, in and for the County of Maricopa, In cause No. 23252," together with the interest of the corporation "in and to said 350,000 shares of the capital stock of said Hassayampa Placer Gold Mining Company." In other words, the ...