Walker v. Courier Co. ( 1881 )

Wilson, P. J.

The supplemental decree of July 5, 1878, awarding an execution, was inconsistent with, and wholly unauthorized by the original decree. That decree, being final in its nature, settled the rights and liabilities of the respective parties, and the supplemental decree could create no other or different liabilities than those imposed by the original decree. The original decree was not a decree for the unconditional payment of the amount due on Walker’s unpaid stock. True, it required him to pay the money within a fixed time, upon doing which his stock was to be validated; but it also required him to surrender the stock for cancellation if he failed to pay the money within the time fixed. Having neglected to make payment, he could not, after the expiration of the ten days limited for that purpose, tender the money and demand the validation of his stock, however valuable it might have become; and on the other hand, the company could not demand payment of the money. The consequences of Walker’s failure to pay were prescribed by the decree. Those consequences were the right of the company to have the certificates of stock surrendered, and the stock cancelled on its books. In short, Walker no longer had the right to have his stock validated, and the company no longer had the right to demand the money.

The fact that Walker failed to surrender the stock certificates, was immaterial, as his failure did not confer any right upon the company, other than as above stated, and the company without such surrender, could, of its own motion, have cancelled the stock upon its books. Indeed, the decree in terms required it to do so. Besides, if an actual surrender were necessary, tlie company, by a supplemental order could have enforced it.

Such being the nature and effect of the original decree, the supplemental decree of July 5, 1878, awarding an execution against Walker, for the collection of the money, was manifestly unauthorized and improper, not being in execution of the provisions of the original decree.

The decree of the court below must be reversed, and the cause remanded.

Reversed and remanded.