18 Wis. 431 | Wis. | 1864
The matters, stated in the complaint in tbis case would undoubtedly constitute a good ground for the equitable interference of the court to remove a cloud upon the title to real estate, as between the appellant, the railroad company, and perhaps the city of Milwaukee, if the proper parties were before the court. The appellant alleges that he was induced to execute the note and mortgage which he seeks to have cancelled and annulled, and to deliver them to the railroad company in payment of its stock, solely by the false and fraudulent statements and representations of the agent of the company. These alleged statements related to matters material to the transaction, and would doubtless have a strong influence in determining a person to subscribe for stock. They were, in effect, that the requisite amount of stock had been duly subscribed, and the required per centage thereon actually paid in, to effect the organization of the company in accordance with the terms of itp charter; that good and Iona fide cash subscriptions to the capital stock of the company, to the amount of fifty thousand dollars, had been made in rhe city of Milwaukee, and the usual cash payments made thereon after the organization of the company, in addition to the subscriptions made before for the purpose of effecting such organization ; that the company was solvent, and had more than fifty thousand dollars in money raised from stock subscriptions made in the city of Milwaukee; that its pecuniary condition was good, and that it had means to construct and complete the railroad for the distance of fifteen miles; whereas, in fact, the company was really insolvent, its stock valueless, its subscriptions mostly fictitious, and it had not five thousand dollars in money raised from stock subscriptions in the city of Milwaukee. Statements of this character relating to the pecuniary condition of the company, and about matters within the exclusive knowledge of the agents and officers of the corporation, would have a powerful influence in inducing persons to subscribe for stock. If untrue, the contract between the subscri
p Tbe case, however, presented by tbe complaint in tbis action is somewhat complicated, and it is difficult to see bow tbe aid of a court of equity can be successfully invoked, without bringing in other parties whose rights are directly involved in tbe determination of tbe question upon which the relief in tbis cause can be granted. It appears that the appellant’s note and mortgage have been transferred and -deposited by tbe railroad company to and with tbe treasurer of tbe city of Milwaukee, and are now held by said treasurer for tbe use and benefit of tbe city, which claims to bold them in pledge as collateral security to indemnify it against tbe payment of certain bonds which it issued in aid of tbe road. It is alleged that this transfer was wholly without consideration, because the city bonds were void for certain reasons set forth in the complaint. The city bonds being void, the city having paid no consideration for the appellant’s note and mortgage, it is argued that the city is not a holder of these securities for value, and can, therefore, make no defense to the action, unless the railroad'company itself could. Assuming that this position is sound, yet upon what ground can the interposition of a court of equity be invoked to compel the city to deliver up securities which it holds as a pledge to indemnify it against a liability which it has incurred by issuing its bonds ?
It is said the city has incurred no liability because its bonds are invalid. But suppose we hold that the city bonds are void for any reason, is it not perfectly obvious that our judgment will not conclude the city bond holders ? They may hereafter bring suit upon their bonds and establish their validity. It would therefore seem essential that the bond holders, who are directly interested in the question upon which the appellant’s right to relief against the city is founded, should be before the court, so as to be concluded by the decision in this
In this case tbe complaint was demurred to, on tbe ground that it did not set forth or state facts sufficient to constitute a cause of action. Tbe circuit court sustained tbe demurrer pro forma, without any examination or argument, in order that tbe cause might come more speedily to this court for a’ decision of tbe questions involved, wbicb was tbe thing desired by both parties. We make this remark in view of what has already been said upon a question not really raised by tbe demurrer. We think there is a defect of parties defendant. It will be noticed, however, that tbe complaint is demurred to, not for a defect of parties but upon another ground entirely, namely, that it does not state facts sufficient to constitute a cause of action. Our statute requires that tbe demurrant should distinctly specify tbe grounds of objection to tbe complaint, in order to apprise the opposite party of tbe question intended to be raised by tbe issue of law. Sec. 6, chap. 125. He may demur for any one or all of tbe six grounds enumerated in section 5. But if a party demurs for some specific objection, wbicb he assigns, he must be confined to that objection; otherwise there is no reason in the provision which requires him to distinctly specify bis grounds of demurrer. So here, after demurring to tbe complaint for tbe reason that it did not state facts sufficient to constitute a cause of action, tbe party must be confined to that objection, and must be deemed to have waived, for instance, tbe objection that there is a defect of parties. See Wilson v. The Mayor &c. of N. Y, 4 E. D. Smith, 675-685. As a strict rule of practice, therefore, tbe question wbicb we have been considering, and wbicb was so fully dis
Tbe order of tbe circuit court sustaining tbe demurrer is reversed, and tbe cause remanded for further proceedings.
