37 Wis. 317 | Wis. | 1875
It is conceded by the counsel for the plaintiff, that
We do not understand upon what principle this action upon the judgment against the old corporation can be sustained. In the cases of Vilas v. The M. & P. du C. R'y Co., 17 Wis., 498; Smith v. The C. & N. W. R'y Co., 18 id., 17; and Wright v. The M. & St. P. R’y Co., 25 id., 46, this court held that where the property and franchises of a railroad company were sold under a mortgage which the company was authorized by law to execute, and a new company was organized by the purchasers, the new company was not liable for the debts of the old corporation. The case in principle is not different from the ordinary one where a party purchases property sold on a mortgage. Such person does not thereby become liable to pay the general debts of the original owner, though, if a prior lien exists upon the property, it may of course be enforced. But this is an action of debt upon-a judgment against the old company, and proceeds upon the mistaken notion that the defendant company is liable upon it in the same manner as though the judgment were originally rendered against it. The fact that the defendant is now operating its road across the lands of the plaintiff does not alter the case, so far as this question of liability upon
It was claimed upon the argument, that the case of Pfeifer v. The Sheboygan & Fond du Lac R’y Co., 18 Wis., 155, was an authority to show that the complaint before us stated a cause of action. That case is not very fully reported, but a reference to the original papers on file shows that it was in some material points different from the case at bar. It is deemed unnecessary to state the facts which distinguish the two cases, further than to observe that the defendant there was not liable to the plaintiff upon the mere ground that he had a judgment against the old company, which is really the only ground of liability relied on in the present case.
By the Court. — The order of the circuit court is affirmed.