136 Wis. 589 | Wis. | 1908
Dissenting Opinion
(dissenting). Upon the questions involved in this cause I think the law is in a regrettable condition of uncertainty. Hancock Nat. Bank v. Farnum, 116 U. S. 640, 20 Sup. Ct. 506; Huntington v. Attrill, 146 U. S. 657, 13
This is not a contest relating to property in this state and between creditors resident in this state and a foreign receiver. There are many such cases, and there is some confusion on that subject. 1 Whart. Confl. of Laws (3d ed.) § 390f-eb seq. But in this state the rules of law controlling that class of cases are fairly settled. There can ordinarily be in such cases no questions concerning the faith and credit to be given to judgments of a sister state, because creditors of that class are not parties to the suit in which the receiver was appointed, nor is the property in this state bound in rem. But where, as in the instant case, the objection is-made by the debtor against whom the action is brought by the foreign receiver, and where such debtor was a party to the suit which resulted in the appointment of tire foreign receiver, at least so far as that suit authorized an assessment and invested such receiver with the right to bring- action or with the title in trust to the chose, different considerations-arise. Bernheimer v. Converse, 206 U. S. 516, 27 Sup. Ct. 755; Converse v. Ayer, 197 Mass. 443, 84 N. E. 98. In the last-described instances, sec. 1, art-. IV, Const. U. S., should control the rulings of the state court before which the foreign receiver brings his action to enforce a demand in favor of such receiver and against such defendant. In such instances we should give the order or decree of the foreign court investing the receiver with the right to bring the action the-same force this decree would have in the state where made. Hancock Nat. Bank v. Farnum, 176 U. S. 640, 20 Sup. Ct. 506. The order is final and conclusive on these questions in
The complaint here, which may, in connection with an examination of the Minnesota statutes and decisions, be taken on demurrer to be true, states the force and effect of these proceedings in Minnesota. Hanley v. Donoghue, 116 U. S. 1, 6 Sup. Ct. 242, and Minnesota statutes and decisions referred to in Bernheimer v. Converse, supra, and Converse v. Ayer, supra. This complaint informs us that the plaintiff by virtue of the laws of that state and his appointment as receiver became, was, and is the representative of all the stockholders and creditors of the insolvent corporation and invested with the title to all the rights of action possessed by said corporation and authorized to maintain this action. He is not then merely a juristic person possessing the latter legal quality only by force of laws which have no extraterritorial effect, as was the case in Anglo-Am. P. Co. v. Davis P. Co. 191 U. S. 373, 24 Sup. Ct. 92; S. C. 169 N. Y. 506, 62 N. E. 587, and Hale v. Allinson, 188 U. S. 56, 23 Sup. Ct. 244. It is here averred that the receiver is a resident and citizen of Minnesota. Sec. 2, art. IY, Const. U. S. The court of his state by order or interlocutory decree to which defendant was a party (Converse v. Ayer and Bernheimer v, Converse, supra) invested him with title, in trust for other citizens, to this right of action. A statute of Wisconsin denying this decretal order the efficacy which it possessed in
Lead Opinion
It is conceded by counsel for both parties in this case that every controverted question therein involved was also involved and decided in Hunt v. Whewell, 122 Wis. 33, 99 N. W. 599. It was there said in reference to the cause of action sued upon: “The liability is statutory, the remedy to enforce it is statutory, and the appellant’s title is a creature of the statute.” A conclusion was reached that, as to such a cause of action, the courts of this state could, if they •chose, close their doors and refuse to entertain the same. The opinion in Hurd v. Whewell covers every phase of this case that it is considered by the court necessary or even advisable to cover here. As far as this court is concerned, the rule of dare decisis as to all questions involved will be applied until a higher tribunal reaches a different conclusion
In the case of Bernheimer v. Converse, 206 U. S. 516, 21 Sup. Ct. 755, relied upon by appellant’s counsel as practically overruling Hunt v. Whewell, the question of comity was not involved, was not discussed, and was not passed upon in any way. The right to refuse comity was the sole question decided in Hurd v. Whewell. The Bernheimer Case, therefore, is not in conflict therewith.
Eor reasons given in Hunt v. Whewell, and upon the grounds therein stated, the judgment in this case should be affirmed.
By the Court. — Judgment affirmed.
