87 Wis. 215 | Wis. | 1894
The order of July 23, 1892, striking out the name of one of the plaintiffs, was made by the court. Neither its validity nor its regularity is questioned. It is claimed that the defendants are entitled to a judgment for costs against the person whose name was so stricken out; but that is a matter which should have been determined, if
It is contended that the order made by the circuit judge at chambers, February 4, 1893, adding new parties plaintiff, as mentioned in the foregoing statement, was without authority and should have been set aside. The reason given for such contention is that secs. 2610, 2611, 2830, E. S., only authorize the “court” to make such order, aDd that another section of the statutes provides that, wherever the “ statutes authorize an order or proceeding to be made or taken by the court, it must be done by the court in session.” S. & B. Ann. Stats, sec. 2815. The refusal of the court, by the order of October 4, 1893, to set aside that order, in effect continued the same as the order of the circuit judge at chambers, without adopting it as the order of the court. Balkins v. Baldwin, 84 Wis. 212. The order of February 4, 1893, being made by a judge at chambers, was not appealable. Hubbell v. McCourt, 44 Wis. 584; Whereatt v. Ellis, 68 Wis. 70; State v. Brownell, 80 Wis. 563. It follows from these adjudications that, if such chamber order is really prejudicial to these appellants, then the order refusing to set it aside should be reversed, as in Balkins v. Baldwin, supra. On the contrary, if that chamber order is in no way prejudicial to the appellants, then they are not “ aggrieved ” by the order refusing to set it aside; and, if they are not “ aggrieved ” thereby, then they are in no position to invoke the appellate jurisdiction of this court to review the same. R. S. sec. 3048; McGregor v. Pearson, 51 Wis. 122; Eureka S. H. Co. v. Sloteman, 67 Wis. 126; Ackley v. Vilas, 79 Wis. 160; Shabanaw v. C. C. Thompson & Walkup Co. 80 Wis. 623. The important question for
The action is brought under a statute which declares;
“ The stockholders of every corporation, other than railroad corporations, shall be personally liable to an amount equal to the stock owned by them respectively in such corporation for all debts which may be due and owing to its clerks, servants and laborers for services performed for such corporation, but not exceeding six months service in any one case.” R. S. sec. 1769. The new plaintiffs, as well as the original plaintiffs, respectively, either performed services for the corporation as such clerks, servants, and laborers, or were the assignees and owners of claims for services performed for the corporation by such clerks, servants, and laborers. There can be no question but that such claims are assignable. Day v. Vinson, 78 Wis. 198. This court has repeatedly held, in effect, that an action to enforce a statutory liability against the stockholders of an insolvent corporation should be in equity and on behalf of one or more plaintiffs and all other creditors having similar claims, against all such stockholders, and also against the corporation unless it has been dissolved or its assets wholly exhausted. Sleeper v. Goodwin, 67 Wis. 588, and cases there cited. This rule was sanctioned by this court as early as Coleman v. White, 14 Wis. 700. It seems to be in harmony with the statute which declares; “When the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole” R. S. sec. 2604. This statute has been construed as merely re-enacting the rules which prevailed in equity, and which otherwise might have been held to be abolished by the Code. Barb. Parties, 50, 51. It is there said: “ When the question involved is one of common or general interest, the action may be
It is said by a very learned author on Code Pleading:
■“ There are cases in whiqh a suit cannot be maintained in the name of the judgment creditor alone, but must be for himself and for the benefit of all other creditors who may come in, etc. This is applicable to all cases where, by statute or otherwise, no preference can be given, but the fund is applicable to all creditors jpro rata, as in cases of proceedings against insolvent manufacturing companies or other insolvent corporations.” 2 Van Santv. Eq. Pr. 134. The same learned author says: “ When the complaint is on behalf of the creditor who is plaintiff, and all others who may come in and contribute, etc., such other creditors are allowed to come in at any time, either before or after judgment, until the fund is actually distributed and paid out.” Id. 154. In Wilder v. Keeler, 3 Paige, 164, it was held that: “Under a decree upon a creditor’s bill, for the creditors to come in and prove their demands, it is a matter of course to permit a creditor to come in and prove his debt at any time before the fund is actually distributed and paid out, upon his showing a sufficient excuse for not coming in before the master, and upon payment of all costs produced by the delay.” The fact that such action is commenced in behalf of the parties named as plaintiffs, and others not named,
From the authorities cited, it follows as a logical sequence that the order adding new parties is in no way prejudicial to any of the defendants, but on the contrary may save them from the annoyance of a separate suit involving questions in which all such claimants have a common or general interest. Because the appellants are in no way aggrieved by the order of the circuit court of October 4, 1893, the same is hereby affirmed.
By the Court.— Order affirmed.
For the reasons given in the opinion filed in that case, the order of the circuit court in this case is affirmed.
Cassoday, J. In Day and others, Respondents, vs. Pierce and others, impleaded with the Bessemer Mining Company and others, Appellants, the facts are substantially the same as in the case against the Nimikon Iron Mining Company (Day v. Buckingham, ante, p. 215), decided herewith.
For the reasons given in the opinion filed in that case, the order of the circuit court in this case is affirmed.