Hyman v. Stern

CURTIS, J.

The appellant and respondent were two of the organizers, stockholders, and directors of the Karl Stern Company, a corporation. The defendant was at all times the president, general manager, and a director of said company, and the owner of 1,438 shares of the capital stock thereof, out of 1,600 shares of said company outstanding, and was at all times in active management and control of the business and affairs of said company; plaintiff at all times up to the execution sale herein involved was the owner of 100 shares of the capital stock of said company, which had a value of approximately $2,000. Plaintiff was the secretary and treasurer of said company from its organization up to April 1, 1919. She was also in the employ of said company from the date of its formation up to the tenth day of August, 1918, at which date she left the employ of the company. About February 11, 1919, she commenced an action in the superior court of the county of Los Angeles against the said Karl Stern Company for moneys alleged to be due her for services rendered. And about June 11, 1919, she recovered judgment against said company for the sum of $838.75 and costs. The company appealed from said judgment and the same was reversed on May 20, 1920. (47 Cal.

App. 605 [191 Pac. 47].) As a reading of the opinion will reveal, the judgment was reversed for the reason that the appellate court held the same to be excessive in an amount of approximately between forty and fifty dollars. On the reversal of said judgment,' the Karl Stern Company was awarded its costs on appeal, amounting to $97.30, and the cost bill showing said costs was served on plaintiff’s attorney in that action on or about July 21, 1920, but said attorney failed to notify plaintiff of that fact, and plaintiff had no actual knowledge thereof until about February 21, 1921.

[658]

On August 3, 1920, the defendant, Karl Stern, acting as president of the Karl Stern Company, caused an execution to be issued on said judgment for costs on appeal, against said plaintiff, and caused the same to be levied on plaintiff’s stock in said Karl Stern Company, and said levy was made by the sheriff, leaving a copy of said execution with the defendant, said Karl Stem, as president of said Karl Stem Company, and said defendant as such president signed an answer to said garnishment and delivered the same to the sheriff; thereáfter, and on August 11, 1920, said stock was sold on execution sale, and the defendant Karl Stern was the only bidder at said sale, and became the purchaser of said stock for himself, personally, for the sum of $15. Plaintiff did not discover the fact of said judgment for costs or said execution sale until about February 1, 1921, and on February 25, 1921, she tendered to defendant and offered to pay him the total amount of said judgment, with interest and costs amounting to $102.40. The evidence shows that the defendant and his attorney were the only persons present at the time of the execution sale and the defendant made no effort whatever to inform the plaintiff of the judgment against her and never demanded its payment, either of plaintiff or plaintiff’s attorney. Plaintiff, therefore, instituted this action and recovered a judgment against the defendant, Karl Stem, wherein it was decreed that upon payment by said plaintiff to said defendant, or to the clerk of said superior court for said defendant, within thirty days from the docketing of said judgment, of the sum of $15.57 and the balance due on the judgment against said plaintiff and in favor of Karl Stem Company, a corporation, for costs on appeal, then and in that event that the sheriff's sale under execution of said stock be vacated, annulled, and set aside. The defendant appeals from this judgment.