failing to appear or plead in the action, judg- | ment was entered against him, sustaining the attachment and garnishment and ordering the sheriff to sell the shares of stock under said attachment; that thereupon, in obedience to this order, the sheriff sold said stock by taking the stock book of the company, at the company's office, and offering the stock for sale from the stubs thereof; that at the said sale the plaintiff purchased said shares of stock, and the sheriff made a return, showing that he had sold the stock in the manner as before stated. Thereafter the court confirmed the sale. Thereupon the purchasers of said stock demanded of the corporation and its officers that they issue to him new certificates of stock, which they refused to do, whereupon the purchaser commenced this action against the corporation for damages for the conversion of the stock. The questions presented for consideration may be briefly summarized as follows: (1) Are shares of stock in a corporation subject to attachment under the laws of this state? (2) Is an action to recover the value of the stock the proper remedy for the refusal of the defendants to issue the stock to the plaintiff? [1] The first question must be answered in the affirmative. Section 4815, Rev. Laws 1910, provides that the order of attachment shall require the sheriff to attach the lands, tenements, goods, chattels, stocks, rights, credits, money, and effects of the defendant in his county, not exempt by law from being applied to the payment of the plaintiff's claim. Section 1237, Rev. Laws 1910, provides that "Whenever the capital stock of any corporation is divided into shares, and certificates therefor are issued, such shares of stock are personal property." It seems to us that when we consider how completely the descriptive words of the statute cover all other species of property the word "stocks" must be held to mean corporate stocks, if it is given any meaning at all. There is no good reason why this class of personal property should not be made subject to the payment of the debts of the owner thereof. Most of the states of the Union provide for the seizure of this species of property by execution or by attachment, and our state forms no exception to the rule. The section of the statute we have just cited, as we have seen, requires the sheriff to attach the "stocks" of the defendant, and section 4819, Rev. Laws 1910, contains specific directions as to how this shall be done. It provides that: "The order of attachment shall be executed by the sheriff, without delay. He shall go to the place where the defendant's property may be found, and declare that, by virtue of said order, he attaches said property at the suit of the plaintiff; and the officer, with two householders, who shall be first sworn or affirmed by the officer, shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and householders, and returned with the order." This seems to be all that is required to complete the attachment of intangible personal property of the kind now under consideration, which cannot be taken into custody by the sheriff. Section 4820 provides as follows: "When the property attached is real property, the officer shall leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order. Where it is personal property, and he can get possession, he shall take the same into his custody and hold it subject to the order of the court." [2] This last section it seems to us complements the other two. The first section prescribes what classes of property are subject to attachment, and specifically mentions "stocks"; the second prescribes the manner in which the order of attachment shall be executed by the sheriff; and the third provides that, where it is tangible personal property, that is, personal property of which the sheriff can get possession, it shall be taken into his custody. Stocks being intangible personal property which cannot be taken into custody by the sheriff, the attachment of this class of property is complete when section 4819, supra, is complied with. It seems to be well settled that, for purposes of execution or attachment, the situs of shares of stock is within the state where the corporation resides, and that they may lawfully be levied on in such state, though owned by a nonresident. Wait v. Kern River Mining & Dev. Co., 157 Cal. 16, 106 Pac. 98. As was stated in National Bank v. Railway Co., 21 Ohio St. 221, if the corporation were a domestic one, it is clear that the absence of the certificates from the state would cut no figure. Under these authorities it would follow in the case at bar that, while the certificates of stock were in the possession of Mr. Beasley in Tennessee, the intangible shares of stock were in this state, and, unlike other species of personal property, were incapable of being removed therefrom.. Wherever such stock constitutes the subject-matter of the action we see no reason why it should not be held to be in the state where the corporation resides. If such stock cannot be reached by the courts of the state and dealt with as right and justice may demand, it would be interesting to inquire how stock can be attached and be subjected to the payment of the debts of the owner. We think our statutes, in harmony with the laws of many other states, furnish a simple and effective answer to this question. [3, 4] We are unable, however, to agree with counsel for the plaintiff that an action against the corporation and its officers for the recovery of the value of the shares of stock is the proper remedy for the refusal of the officers of the corporation to issue the stock to the plaintiff. In support of this contention counsel invoked the rule that "Any act of dominion wrongfully exercised over another's property in denial of his right or inconsistent with it may be treated as a conversion. And this is as true of shares of stock as it is of any other property." 10 Cyc. 609. converted the plaintiff's stock to its own use, and rendered itself liable to respond in the full value of the stock to the claimant who could establish his right in a court of law? The mere statement of the proposition refutes it. It may be that the case, as here stated for the plaintiff, shows a good cause of action, but the relief obtained has no correspondence with the injurysustained. It does not appear that the plaintiff has been deprived of any right or privilege belonging to it as a stockholder, but simply that the defendant has refused to acknowledge it to be a stockholder, and to furnish it with evidence of membership. The remedy for this wrong lies in another direction." Herrick We are unable to perceive the application of this rule to the facts disclosed by the record before us. What act of dominion has We have examined the following authorthe defendant corporation or its officersities cited by counsel for plaintiff in support over the plaintiff's of their contention that an action to recover wrongfully exercised property in denial of his rights? It is mere- the value of the stock is the proper remedy, ly charged that they refused to make a trans- and do not find them in point. Kimball v. fer of the certificates of stock upon the books Union Water Co., 44 Cal. 173, 13 Am. Rep. of the corporation without pointing out any 157; Herrick v. Humphrey Hardware Co., 73 by-law of the company or law of the state Neb. 809, 103 N. W. 6S5, 119 Am. St. Rep. which imposes this duty upon the corpo- 917, 11 Ann. Cas. 201. Some of the authorration. While these certificates are in them-ities cited support the proposition thatselves valuable for some purposes, and to "When under its own by-laws, or under a some extent may properly be regarded as statute, it is necessary that the transfer of the property, yet they are distinct from the hold-stock be made on its books, and the corporation er's interest in the capital stock of the wrongfully refused to make and transfer, such corporation, and are not goods and effects refusal is a conversion of the stock." within the meaning of the statute relating v. Humphrey Hardware Co., supra. to attachments. They are no more subject to an attachment or trustee process than a promissory note. The debt is subject to attachment, but the note itself, which is simply evidence of the debt, is not. stock. They may be attached, but the certificates cannot be. Winslow v. Fletcher, 53 Conn. 390, 4 Atl. 250, 55 Am. Rep. 122. We find the precise question now under consideration satisfactorily discussed and decided in National Bank v. Railway Co., 21 Ohio St. 221. In that case the plaintiff was the equitable owner of 40 shares of the capital stock of the defendant, a railroad corporation. Certificates for this stock were outstanding in the name and possession of another party claiming title. The defendant refused to acknowledge the plaintiff as a member or stockholder. The action was for the value of the stock and judgment was rendered in favor of the plaintiff. The Supreme Court in reversing the judgment said: Assuming that this states a correct principle of law, still we cannot agree with counsel, as we are unable to find anything So it is within the by-laws of the defendant corporation, or in the statutes of the state, which require the transfer of stock sold under attachment to be entered upon the books of the corporation. While the purchaser of the stock, in these circumstances, becomes the owner of the shares, and entitled to all the rights and privileges of a stockholder, it seems he must rely upon the same evidence of title as the purchaser at attachment sale of any other class of personal property. "Now, can it be that, because the defendant refused to assume the peril of deciding between the contending claimants, by issuing other certificates for the same stock to the plaintiff upon demand, it thereby became a wrongdoer and Being unable to find any obligation imposed upon the corporation by either its bylaws or the laws of the state, to transfer shares of corporate stock purchased under attachment, we think the trial court was right in sustaining the demurrer to the petition. For the reasons stated, the judgment of the court below is affirmed. OWEN, C. J., and RAINEY, HARRISON, and JOHNSON, JJ., concur. (16 Okl. Cr. 691) (Syllabus by Editorial Staff.) PROHIBITION 3(1) VALIDITY OF ORDINANCE-DENIAL OF WRIT-OTHER REMEDY. elevated sewer pipe, where there is not sufficient space to drive in safety, cannot recover because of his failure to use ordinary care to protect himself from an apparent danger. 2. TRIAL ~68(3)—REVIEW-ABUSE OF DISCRETION-DENYING MOTION FOR REOPENING CASE. In servant's suit for injuries received while driving under elevated sewer pipe, the court did not abuse its discretion in denying, after Prohibition to prevent county court of Nowata county from entertaining jurisdiction of petitioner's appeal from judgment of muarguments on the motion to dismiss the case nicipal court of city of Nowata, wherein he had been concluded, plaintiff's motion to reopen was fined $50 and costs for violating an ordi- the case and to continue the hearing, so as to nance against Sunday operation of moving pic-introduce testimony as to the height of the pipe ture theater, and to prohibit enforcement of above ground. fine because ordinance was illegal and the trial court had no jurisdiction, would be denied, as petitioner should have refused to pay fine and, if committed, applied for writ of habeas corpus. Application by Roy E. Heffner for writ of prohibition to the county court of Nowata | Brown and others. From judgment for deCounty. Writ denied. Bert Van Leuven, of Coffeyville. Kan., for petitioner. PER CURIAM. Application of Roy E. Heffner for writ of prohibition to prevent the county court of Nowata county from entertaining jurisdiction of an appeal taken by petitioner from a judgment of the municipal court of the city of Nowata, wherein the petitioner was fined $50 and costs, for a violation of Ordinance No. 238 of said city, which is an ordinance prohibiting, among other things, the operation of moving picture theaters on Sunday, and to prohibit said municipal court from enforcing the payment of said fine. It is alleged that for various reasons, specifically stated, said ordinance is illegal and void, that the judgment of said municipal court is a nullity, and said court had no jurisdiction to try petitioner, and that said county court has no jurisdiction in said cause. We are inclined to think that, to test the validity of said ordinance, petitioner should have refused to pay the fine assessed against him, and, if committed for refusing to pay the same, he could then apply for writ of habeas corpus, Having elected to take an appeal from the judgment of said municipal court, we are of the opinion that he is not entitled to the relief prayed for. It is therefore ordered and adjudged that the application for writ of prohibition be denied. (107 Wash. 366) SIMPSON v. BROWN et al. (No. 15346.) (Supreme Court of Washington. May 31, 1919.) 1. MASTER AND SERVANT ~236(4)—INJURIES TO SERVANT-OBVIOUS DANGERS. An experienced farm hand, injured in at tempting to drive a horse and wagon under an Department 1. Appeal from Superior Court, Thurston County; John M. Wilson, Judge. Suit by Charles Simpson against A. L. fendants, plaintiff appeals. Affirmed. Hartman & Hartman, of Seattle, for appellant. Peters & Powell, of Seattle, for respondents. MITCHELL, J. This is a suit for damages on account of personal injuries suffered by plaintiff while in the employment of defendants. The case was heard by the court without a jury, and at the close of plaintiff's case the court granted defendants' motion for Judgment, from which judgment this appeal is prosecuted. (1) There are two assignments of error: In rendering judgment in favor of defendants; and (2) in denying plaintiff's motion to reopen the case and to continue the hearing for the purpose of submitting further evidence on his behalf. Appellant was 48 years old, raised on a farm and all his life accustomed to handling horses. The accident in question occurred on respondents' farm, where appellant had been working for 6 months as foreman of the poultry department, with a number of From a bunkhouse on persons under him. the place to a slough from the Nisqually river near by, respondents maintained a 6inch sewer pipe, elevated on posts, 8 to 10 inches in diameter, set in the ground about 10 feet apart. The pipe was in the open and the ground beneath was clear. Appellant was entirely familiar with the premises. The accident occurred about 10 o'clock in the morning, in attempting to drive under the pipe. He was directed to go out into a field and get a lot of cabbage trimmings for the chickens. His own account of how he was injured is as follows: "I hooked up the horse on Thursday morning and drove down into the field. I went around the bunkhouse after the load through the way that was traveled considerably, and, that way For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) looking kind of muddy, we went in and got one load and come out the same way, and then we went and fed that to the chickens, and went back after the second load in the same way. While we was loading the second load, me and Mr. Garfield talked the matter over that the road was pretty muddy there. It was bottom land, and there looked to be several tracks under this pipe higher up, where it was dry, and we thought we could get under there, and the ground was a little bit raising there, and we didn't clear the pipe. "Q. Now state just how it occurred. A. Going through there the ground was high, and I aimed to duck it this way (indicating). On application for administration c. t. a. of estate of one dying in another state, contested by his widow, who claimed that stock alleged to be in the state had been given to her, her testimony that a written statement given her when her husband presented stock to her had since been lost was admissible to show its loss and to lay the foundation for introduction of secondary evidence of its con "Q. Stoop down? A. Yes; on the seat of the high-seated wagon; and the pipe caught me across the neck here and broke me down, and as I remember Mr. Garfield dropped down on the shaft to save himself. I didn't have time to, and he hollered whoa to the horse, and the horse stopped, and when I was pinned under the pipe he backed the wagon to clear me. I 2. HUSBAND AND WIFE 491⁄2 (S)--WILLS didn't remember anything more for a few secons, until I come to and seen the boys there In proceedings to admit to probate a protaking me off the wagon." tents. 252-GIFT TO WIFE-JURISDICTION. evidence held to show that deceased had delivered the stock to his wife as a gift, and as he died possessed of no other property in the county, the court had no jurisdiction of the proceedings. bated will of one dying in another state, dis[1] This was a perfectly plain situation.posing of shares of stock standing in his name, An experienced farm hand and teamster attempted to drive a horse, known to him to be docile and manageable, under a visible 6-inch pipe over smooth ground, the possibility of the accomplishment of which he had just considered and discussed with his helper, Mr. Garfield. Of course, there was not sufficient space under the pipe to drive in safety; but the danger was open and apparent to the senses, and as appellant approached it he could have failed to protect himself only by want of ordinary care and observation. Failure to observe such care precludes any right of recovery. Labatt's Master and Servant (2d edition) vol. 3, § 1144, p. 3026; Jennings v. Tacoma Ry. & Motor Co., 7 Wash. 275, 34 Pac. 937; Krickeberg v. St. Paul & Tacoma Lumber Co., 37 Wash. 63, 79 Pac. 492; Jock v. Columbia & Puget Sound R. Co., 53 Wash. 437, 102 Pac. 405. En Banc. Appeal from Superior Court, King County; Walter M. French, Judge. · Petition by Calvin E. Vilas and Reinhardt Rahr, the foreign executor of the will of William B. Bushnell, deceased, for administration c. t. a., contested by George M. Bushnell. Petition dismissed, and petitioners ap peal. Affirmed. Peters & Powell, of Seattle, for appellants. Kerr & McCord, of Seattle, and Thomas M. Vance, of Olympia, for respondent. MACKINTOSH, J. William B. Bushnell [2] Upon concluding the arguments on the died in Wisconsin, July 5, 1916, leaving a motion to dismiss the case, it appearing there will of which the appellant Rahr was appointwas a dispute between counsel as to what the ed executor. The probate proceeding in the proof showed, and possibly some slight un- Wisconsin court was presented to the supericertainty in the proof, as to the height of the or court of King county by certified copy, and pipe above the ground, appellant asked a petition was filed for the appointment of leave to introduce further evidence in that the appellant Vilas to serve as administrator respect, and then asked for a continuance cum testamento annexo, the petition alleging for that purpose, upon the statement by that the heirs of William B. Bushnell were counsel for respondents that their witness, the respondent, George M. Bushnell, his widwho had been present during the trial, pre-ow, and certain nephews and nieces menpared to testify upon that matter, was absent, having left immediately upon hearing both parties had rested in the introduction of evidence. The court denied the motions, and clearly without any abuse of discretion in doing so. Judgment affirmed. tioned in the will. The will bears date of November 25, 1914, and recites that all the testator's property was in the name and possession of his wife, George M. Bushnell, then a resident of the state of Washington, although the testator was the sole and legal owner of such property. After providing for his wife, the residue of the property was CHADWICK, C. J., and TOLMAN, MAIN, willed to the appellant Rahr, as trustee, for and FULLERTON, JJ., concur. the benefit of the children of his deceased For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes brothers. To this petition the widow an- [ with lucid intervals which for the most part swered, which answer presents three objec- were periods of unrelieved poverty and negtions to the petition: The first is determina- lect. It is true that at the time the stock tive of this proceeding and is the only one we was transferred it may have been of somewill consider; that being that there is no what doubtful value, for the reason that the property or estate in King county belonging country was going through a period of deto Bushnell at the time of his death, and pression, and Bushnell's corporations were therefore that letters of administration can- financially embarrassed. Since that day Mrs. not issue in that county. Bushnell has continued in the sole and exclusive possession of the stock, and has exercised all the rights of ownership thereof, either through herself or agents whom she has em this time the stock has become of exceedingly great value. During a large portion of the time since 1892 Bushnell was confined in hospitals, where he received but the most meager attention from his wife, in fact, going for long periods without ever seeing her. Finally, on his release from the Hospital for the Insane in Illinois, in 1914, he went to Wisconsin in an effort to discover his nephews and nieces, the children of his deceased brothers, who, after his death, were to become the beneficiaries of his will. It is agreed that Bushnell died in Wisconsin, and it may be assumed that he was a resident of that state. The property which it is claimed is in King county to give jurisdic-ployed to manage these corporations until at tion to the probate court of that county consists of the capital stock of the Seattle Ice Company. The shares of stock of this company have stood for a great number of years in the name of George M. Bushnell, the respondent, and are claimed by her as her separate property. The question then for determination is as to the ownership of this stock. If it is the separate property of the respondent, the superior court of King county had no jurisdiction to admit to probate the Bushnell will. The respondent's claim to the stock is that in January, 1892, she received it as a gift from her husband, and that she has since that time held, owned, and exercised exclusive control thereof. The This case presents to the court for review the life history of a man and woman who were married in November, 1884, and who came to this state in March, 1889. The testator, a man of superior attainments and education, was, at several times during his life, the victim of a recurrent insanity, which caused his confinement in different asylums. When not so confined he was in the full possession of an intellect of more than average capacity, and exercised remarkable business judgment and acumen. widow is a woman of dominating personality, possessed of a shrewd commercial instinct, united with a disposition of the most mercenary kind and a character of a most pronounced cupidity. From a small beginning, through a prolonged period of peril, a very successful business has been built up, which the widow claims is her sole property. The story of the life and activities of these two persons presents a phase of human nature adequately analyzed in fiction only by Balzac's Père Goriot, an epic of ingratitude. One is tempted to wish for the pen of this great artist to properly present the details of this tragedy, but for the discussion of the issue presented such recital is unnecessary. Suffice it to say that in 1892 William B. Bushnell, in the city of Portland, Or., it is claimed, gave to his wife all the stock which he held in the Seattle Ice Company and the ice companies owned by him in Tacoma and Portland, stripping himself bare of all his possessions to thereafter lead a sort of fugitive life, alternating between long sojourns in mental hospitals as a ward of various states, The questions of law presented by the case are few, the question of fact, in the determination of which the entire record has been examined, we are constrained to decide, as did the trial court, not, however, without letting it be recorded that we wish the result might be otherwise; this case being one where the respondent has established her right to her pound of flesh, with the court powerless to fulfill the commendable wishes of her deceased husband. [1] The questions of law involved are these: On the hearing the trial court allowed Mrs. Bushnell to testify that a written statement given her at the time her husband presented the stock has since been lost. The testimony of the witness in this regard was not offered to prove the receipt or contents of the instrument, but to show its loss and laying the foundation for the introduction of secondary evidence of its contents, and therefore does not fall within the rule of White v. Walker, 84 Wash. 653, 147 Pac. 409, and Goldsworthy v. Oliver, 93 Wash. 69, 160 Pac. 4, as Mrs. Bushnell was not testifying as to a transaction with the deceased; her evidence not being introduced to establish the existence of the contract contained in the writing, which had been testified to by another witness, but merely to show that she was unable to produce it and to allow the introduction of secondary evidence by other witnesses as to its contents. The cases of Garvey v. Garvey, 52 Wash. 520, 101 Pac. 45, Holly Street Land Co. v. Beyer, 48 Wash. 422, 93 Pac. 1065, Jackson v. Lamar, 67 Wash. 3SS, 121 Pac. 857, Meyers v. Albert, 76 Wash. 218, 135 Pac. 1003, and In re Slocum's Estate, 83 Wash. 158, 145 Pac. 204, are relied upon as negativing a gift in the present case. [2] The evidence, however, is that the hus |