205 Wis. 85 | Wis. | 1931
The first proposition presented here is that the plaintiff, as receiver of an insolvent corporation,
In response to the argument made by counsel for appellants, it should be said that there is a fundamental distinction between the law of Arkansas as stated in the opinion of the court in International Shoe Co. v. Pinkus and the law of this state. In the matter of Voluntary Assignment of Tarnowski, 191 Wis. 279, 210 N. W. 836, it was held that the right to make a voluntary assignment for the benefit of creditors is a personal right inherent in the ownership of property and existed at common law independent of the statute; that while the discharge of a bankrupt from his debts constitutes the very essence of the Bankruptcy Law, the discharge of a debtor is no part of an assignment law; that that
Even if this were not true, still the contention of the . appellants must fail in this case. The plaintiff Hazelwood was appointed as receiver of an insolvent corporation. This is a power inherent in equity courts and does not depend for its vitality upon any provision of the statute. The procedure in cases of this kind is regulated by secs. 286.10 and 286.11, Stats. These sections, however, do not create the remedy. It cannot be contended that the enactment of the federal Bankruptcy Act suspended the power of courts of equity in the several states. No provision is made anywhere for the discharge of an insolvent in proceedings of the kind instituted in this case. So that, in any event, the plaintiff might properly have maintained this action.
The second contention of the appellants is that the cause of action stated in the complaint by which it is sought to compel individual defendants to pay for their stock subscriptions, which they pretended to pay but which they did not pay, is one which can be enforced only by the creditors of the corporation. So far as the plaintiff is concerned, we are
It is further contended that, the plaintiff having no present right to maintain an action, the action must fail. There may have been a time when this contention would have had some substance. If so, it has long since passed. All the parties are in court, the action is properly begun, and although the plaintiff is entitled to no relief by reason of what has happened since the commencement of the action, that constitutes no reason for the dismissal of the action as to the defendants as between whom, under the statute, affirmative relief may be granted. The procedure would have looked better to the eye of a common-law pleader if the trustee in bankruptcy had been substituted as plaintiff in the action, but it would in no way have affected the rights of the parties and the ultimate result would have been the same. The contention of appellants is therefore without merit. Until the facts set out in the cross-complaint were alleged, the
By the Court. — Orders affirmed.