holding that a conversion claim was barred by the rule of repose, and stating that ‘[t]he rule has been applied to various situations but always consistently and unvariably’
How later courts described this case
- holding that a conversion claim was barred by the rule of repose, and stating that ‘[t]he rule has been applied to various situations but always consistently and unvariably’
- stating that "[l]ack of notice is not sufficient to avert the application of the doctrine" of repose
- “We have often stated that ‘the basic principle of prescription is not the mere lapse of time, but the lapse of time within which no recognition of a subsisting and continuing right or obligation appears.’ ”
Written by the judges who cited it.
The opinion
On Rehearing
PER CURIAM.
Counsel for appellant in his application brief on rehearing and letter to the Court transmitting the same has characterized the original opinion in this case, among other things, as “ridiculous”, “a sadly erroneous opinion”, “a grievous injustice”, and an “unmitigated tragedy”, and says that appellant is “old and sick and his family will suffer for the necessities of life because his property has been taken from him and given with the sanction of this Court to the most powerful and wealthy corporation in this state”.
As sympathetic as we might be with the personal plight of appellant, we are constrained to decide cases in this Court on the law as we believe it to be applicable. This is what we endeavored to do in our original opinion, to which we still adhere, and which will appear correct to the impartial mind. It is our belief that the doctrine of prescription as it has been applied in this state bars the appellant in his claim. In a given instance the effect of this long-established principle of law might work hardship and disappointment. It is not our province, however, to decide cases on the basis of what we feel would be the most humane, but to apply to the facts the applicable law. And it is our sincere belief that our system of justice based upon application of precedent, which binds us, is over-all the most humane and fair procedure. After a careful study of the two briefs filed on behalf of appellant in his effort to obtain a rehearing of this cause, we are still of the opinion that the law in this state is against the appellant. In 1.3 Am.Jur., § 320, pp. 399-400, we find the following general statement of this law:
“While a certificate of stock is not necessary to the complete ownership of the stock or to the creation of the relationship of stockholder, there can be no doubt that a corporation is bound, even in the absence of a statutory provision, through its proper officers, to issue to each stockholder who has fully paid for his stock a stock certificate representing his interest in the corporation; and upon the refusal of the corporation, upon demand, to issue a certificate of stock to the person entitled thereto, the latter may at his election bring an action at law against the corporation for damages, treating the wrongful refusal to so issue the certificate as a conversion, or a suit in *324 equity to compel the corporate officers to execute and deliver a proper certificate. Equity has jurisdiction in the matter of a suit brought by a stockholder against a corporation to compel it to issue a certificate for the shares of stock owned by him in such corporation ; and if there is any valid reason why this relief cannot be given, equity will grant alternative relief by way of damages. A corporation cannot, however, be compelled to issue stock if it is not provided for by the law of its incorporation and available to be issued.
"A stockholder may lose his right to invoke the aid of equity to compel the corporation to issue him a certificate for the shares of stock owned by him, by a delay of some years, knowing during that time that he is not recognised as one of the stockholders, and he may, by his subsequent conduct, inconsistent with a claim for conversion, waive his right to sue at law for damages.” (Emphasis added.)
See also, by way of analogy, Greenlees v. Greenlees, et als., 62 Ala. 330, 333 .
Can it be said that appellant did not know that he was not being recognized as a stockholder in the appellee corporation and its predecessors? He never received any notice of meetings of stockholders, any dividends, etc. He was working for the corporation (and its predecessors) throughout the whole of the twenty-eight years involved. He is bound to have been cognizant of the prosperity and expansion which his employer enjoyed. Surely the most naive would realize that he was not being treated as a stockholder.
The doctrine of prescription in this state is perhaps unique. It is, however, well established, and has application beyond the statute of limitations, and not affected by it. Patterson v. Weaver, 216 Ala. 686 , 114 So. 301 . The rule creates a conclusive bar. Roach v. Cox, 160 Ala. 425 , 49 So. 578 , 135 Am.St.Rep. 107 . It is “not affected by the circumstances of the situation, that is to say, whether truth and justice are thereby obscured, or by the death of parties or destruction of testimony, and conduct based upon the apparent situation, or the age, state of mind, or status of responsibility. These are circumstances which are considered in respect to laches but not prescription. Oxford v. Estes, supra; Courson v. Tollison, 226 Ala. 530 , 147 So. 635 ; Ashurst v. Peck, 101 Ala. 499 , 14 So. 541 ; * * * ”. Quoted from Wilkerson v. Wilkerson, 230 Ala. 567, 571 , 161 So. 820, 822 . And in Garrett v. Garrett, 69 Ala. 429 , it is said:
“So sweeping is the principle in its scope and operation, that the presumption raised by it is not arrested or rebutted by the proof of any disability, such as infancy or coverture, on the part of the distributees by whom a trustee or administrator has been cited to settlement.”
With this illustration of the state of the law of prescription in Alabama we are not persuaded that an exception to its operation should be made in the case of a stockholder without a certificate with a twenty-eight year old claim against the corporation, inasmuch as the rule is clear that status of responsibility has no effect upon its operation. We have consistently held that it operates alike on all, regardless of the status or condition of the parties. Patterson v. Weaver, supra.
Our doctrine of prescription is so long established in this state, as illustrated by the authorities cited in the original opinion, that we do not consider it necessary to restate it here.
Opinion extended and application for rehearing overruled.
SIMPSON, GOODWYN, MERRILL, and COLEMAN, JJ., concur.