Barth v. Enger-Kress Co.

92 Wis. 225 | Wis. | 1896

Cassoday, O. J.

The assignment was made June 22,1894. July J, 1894, the property was destroyed by fire. July 14, 1894, the receiver was appointed. The proceedings in the matter of the assignment and the receivership were both in the circuit court. On December 18, 1894, the receiver sued the appellant and sixteen other insurance companies,— all alleged to be interested in the payment of the loss occasioned by such fire, by reason of their respective policies of insurance. Such action on the policy or policies was brought in the superior court of Milwaukee county, and is still pending and undetermined. The appellant, as such defendant in such suit upon its policy, here asks to intervene in the receivership proceedings for the purpose of setting aside the appointment of the receiver and all proceedings by him taken, upon numerous grounds. If the assignment was void, then it was certainly competent for the court, in a proper case, to appoint a receiver. Powers v. C. H. Hamilton Paper Co. 60 Wis. 23. Even if the assignment was not void, a receiver might be appointed in a proper case. Id.; High, Receivers, §§ 57, 304, 412, 458-9. Such receivership, in cáse the assignment was valid, however, would not operate to supersede the assignment, nor change the rule for the distribution of the proceeds of the property among creditors. Garden City B. & T. Co. v. Geilfuss, 86 Wis. 612; Geilfuss v. Gates, 87 Wis. 395. But it does not here appear that the appellant has any interest in, or claim or lien upon, any of the property so assigned, or which was thereafter put into the custody of the receiver. It has been sued bjr the receiver upon its policy, executed to the assignor. If it has any meritorious defense, it will, we assume, defeat any recovery upon the policy. It is only interested in successfully making such defense. It is in no way interested in the distribution of the proceeds of the estate among the creditors of the assignor. On the contrary, it is interested in withholding from the estate and snch creditors what is claimed to be due on the policy. Whether an adjudication by this court to the effect that the assignment is valid would aid the appellant in defeating a recovery upon the policy, is a matter in which the trial court, as a court of equity, had no concern, and hence a matter in which this court has no concern. As indicated, the appellant is not a party to nor interested in any controversy in the assignment proceedings, and has no interest in the subject matter of such controversy. The case does not come within the provisions of the statute authorizing interpleader. S. & B. Ann. Stats, sec. 2610. The appellant has no standing in court to interfere with the assignment proceedings. It is only interested in preventing a recovery by the receiver. To that controversy it is now a party in another jurisdiction.

By the Court.— The order of the circuit court is affirmed.