96 Wis. 185 | Wis. | 1897
1. The liability sought to be enforced against the stockholders of the bank in this action is founded upon sec. Vi, ch. 419, Laws of 1852 (1 S. & B. Ann. Stats., p. 1228), which provides that “ the stockholders of every corporation or association, organized under the provisions of this act, shall be individually responsible, to the amount of their respective share or shares for all its indebtedness and liabilities of every kind; ” and by sec. 22 of the act it is provided: “ The shares of such association shall be deemed personal property, and shall be transferable on the book of the association ; and every person becoming a shareholder by such transfer, shall, in proportion to his shares, succeed to all the rights, and be subject to all the liabilities, of prior stockholders.” It is argued that these executors are not within the liability of the statute; that they are hot persons becoming shareholders by transfer of their shares to them on the books of the bank ; and that they have no greater rights, and are subject to no greater liabilities, than if Cary and Sander-son each, in his lifetime, had executed to them an assignment of his stock; and that they could not become stockholders until a transfer of the stock was made to them on the books of •the bank. But this action does not proceed, as against these executors, upon the theory that they became stockholders, as between them and the bank, by purchase and transfer of the shares, or that by reason of their interest in and relation to the stock, in their representative capacities, they have become subject to any personal liability. They have not assumed
2. The objections to the jurisdiction of the court, to the sufficiency of the complaint, and the contention that, the
3. It is contended that the liability in question, upon the facts stated in the record, can be enforced only in the county court of Milwaukee county, in the regular settlement of the estates of the said deceased testators, and that as a time had been fixed in which creditors of the respective testators might present their claims against them for allowance, and notice of such limitation, and of the time of hearing proofs of claims, had been given, the circuit court was prohibited by the statute (R. S. sec.- 3845) from entertaining jurisdiction of these claims. This section provides: “No action shall be commenced against an executor or administrator, excepting actions for the recovery of specific real or personal property, or actions to establish, enforce or foreclose a lien or
The relief demanded and given against these executors is for the payment of money, and it is argued that the complaint fails to state a cause of action, in that it is not alleged that no time had been fixed within which the creditors might present their claims for allowance, or that no notice of such limitation had been ordered or given, and that the judgment, therefore, is not warranted by the pleadings and findings. In Price v. Dietrich, 12 Wis. 626, and Ernst v. Nau, 63 Wis. 134, which were actions brought for the recovery of legal demands, the statutory prohibition in sec. 3845 against bringing actions against executors or administrators except in the cases therein specified was applied, and it was held that the remedy in the county court by presentation and proof of such claims is exclusive.
The case of Lannon v. Hackett, 49 Wis. 261, was an action brought by a surviving partner against the executor of his deceased partner, his widow, and his heirs at law, for an accounting for moneys received by the deceased partner in his lifetime, the proceeds of partnership property, to two thirds
It is material to observe that this decision expressly recognizes the fact that there may be implied exceptions, in addition to those specified in the statute, in respect to certain equitable causes of action, as instanced in the opinion; that the language, though very broad and general, must be taken and considered with reference to the case then before the court; and that the decision cannot be fairly held controlling upon facts or conditions not presented and evidently, therefore, not within the mind of the court. The power of the legislature to take away the jurisdiction of the circuit court in legal or equitable actions is not absolute, but is subject to the condition that a substantial remedy must be conferred on some tribunal of competent and adequate jurisdiction.
In Hasbrouch v. Shipman, 16 Wis. 296, the court, speaking of the power of the legislature to change, modify, or alter the laws governing proceedings in courts of justice, both in respect to past and future contracts, stated: “T,ke rule extracted from the cases was that this power was unrestricted so long as a substantial remedy was afforded according to the course of justice as it existed at the time the contract was made. But the legislature must give some remedy, and not destroy the legal force and obligation of a contract, taking away all existing remedies.” Von Baumbach v. Bade,
To give this legislation the construction and 'effect upon which the defendants insist, would render it unconstitutional, as applied to equitable causes of action, such as are stated in the complaint, where various parties necessary to litigate and determine them cannot be cited and brought before the court. In the present case the county court had no power to cite and bring before it the bank, or its assignee, or any of its numerous stockholders, without whose presence the question of the liability of the estates of Cary and of Sander-son, or of their executors in their representative capacity, for these claims, could not be considered and determined, within the rule laid down in Coleman v. White, 14 Wis. 700, and other cases cited. The court c.ertainly did not, in Lannon v. Hackett, 49 Wis. 261, intend, even by the broad and general language used, to hold that the jurisdiction of the circuit court in all equitable claims or demands was taken away by ’ the statute, except as therein stated, but simply that such would be the result as to all claims, whether legal or equitable, that could be effectively litigated in the county court, and in respect to which its jurisdiction is complete and adequate to the ends of justice; in other words, that the provisions of secs. 3844 and 3845 apply only within the legal competency of their jurisdiction. The case of Lannon v. Hackett must therefore be understood accordingly. The ease of Bostwick v. Estate of Dickson, 65 Wis. 593, was for a money demand due from the estate of Dickson by reason of an express trust, and no other parties than those airead}7-before the court wherein the claim was filed were necessary to litigate it.
The law does not require a party to do a vain thing. There is no reason for saying that a claimant is bound to present his claim to a tribunal for allowance, which has no
The jurisdiction of the circuit court in the present case-may well be rested upon the inability of the county court to-afford to the plaintiff any adequate remedy in the regular course of administration; and the circuit court will decline-to take jurisdiction in matters arising in or relating to the administration of the estates of decedents, except where special circumstances show that a complete and adequate remedy cannot be given by the county court. Hawley v. Tesch, 72 Wis. 299, 304; Meyer v. Garthwaite, 92 Wis. 571, and previous cases there cited. The cases of Nolan v. Hazen, 44-
4. It is further assigned as error that the circuit court by its judgment awarded execution against the executors of' Cary and of Sanderson, to be levied upon and collected out of the property and assets received by them as such executors and in their hands at the time of the commencement of the action. The statute (sec. 3845, E. S.), in substance,, provides that no attachment or execution shall be issued against the estate of the deceased, or the executor or administrator thereof, until the expiration of the time limited for the payment of debts, except in certain cases not here material to state. Vhether the time limited for the payment of debts has expired, or whether an order has been made for such payment, the record does not show. We think that this, statute is applicable, and that, after the amount of the claims, have been established, no execution should be awarded on the judgment, but that the judgment must be certified to the-county court, to the end that the claims established by it be directed to be paid as claims against the estates of these respective decedents, with other claims, in the order prescribed by law. E. S. sec. 3852. The necessity for equitable aid or relief having ceased, the powers of the county court are entirely adequate to the enforcement of the claims. If the-
It follows, therefore, that the judgment appealed from should be affirmed, except as to the portion awarding executions against these executors, and that as to such portion it should be reversed. No costs will be awarded on these appeals, but the fees of the clerk of this court are to be paid by the respondent.
By the Gourt.— Judgment is ordered accordingly.