99 Wis. 276 | Wis. | 1898
The above statement, without adopting the language of the complaint, sufficiently shows the nature of the action and the facts alleged in support of it. In the briefs of counsel the complaint is treated in so many aspects that it is difficult to determine therefrom what the pleader intended. It is said that the action is in equity for an accounting of corporate assets negligently lost; that it is an action for losses to the creditors by mismanagement; that it is an action for damages; that it is an action to enforce a personal liability to plaintiff and the other creditors; that it is an action to enforce a statutory liability of the directors
The complaint sets forth the creditor capacity of the plaintiff, the official character of defendants as directors of the corporation, and facts showing that the assets of the corporation were largely wasted and lost through the culpable negligence and fraud of such directors, and asks that they be compelled to account for their misconduct by restoring such lost assets, or the equivalent thereof in money, ■sufficient to satisfy the claims of the participating creditors. The liability of the directors of the corporation to account, under such circumstances, is not statutory, so the complaint
It follows from what has preceded that the complaint does, not state a cause of action to enforce a statutory liability,, nor an action for damages for the fraud alleged, but does-state facts sufficient to constitute a cause of action to compel the defendants to account for assets of the bank lost through their wrongdoing,— not account to the plaintiff,, or plaintiff and his associates, for their benefit solely, but,, under the circumstances stated in the complaint, to the representative of the corporation, that is, its' assignee for the-benefit of creditors. Plaintiff and those participating with hhn in this action have no right to have the assets recovered, administered for their benefit, as appears to be the-scheme of the pleader, but the restoration must be to the assignee, either directly or by payment into court, to be administered by him, in lieu of to the corporation, for the-benefit of all the creditors.
The fact, however, that the relief prayed for is not the-proper relief on the facts alleged, does not militate against the sufficiency of the complaint, since the facts pleaded constitute an equitable cause of action, and the prayer invokes the same jurisdiction. The right to maintain the action om
By the Gourt.— The order appealed from is reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings according to law.