Hughes v. Hunner

91 Wis. 116 | Wis. | 1895

NewmaN, J.

The debenture bond was deposited with the state treasurer to protect the holders of policies in the Hekla Insurance Cowojgcmy of Madison, who were reinsured in the St. Paul companies. The plaintiff John Hughes was such a policy-holder. He had a loss which has been adjusted. The corporations liable for the loss are insolvent. No just reason is perceived why these facts do not entitle him to resort to the security. The bond was deposited to meet just this case. It is not in the custody of the law of Minnesota. It is, in fact, in the custody of the state treasurer of "Wisconsin, and within the jurisdiction of the courts of this state. It could hardly be that the courts of this state, on the score of comity, would permit this security, deposited by nonresident debtors, to be withdrawn from this state, and so compel domestic creditors, for whose benefit it was pledged, to seek redress in a foreign jurisdiction. McClure v. Campbell, 71 Wis. 350; Gilman, v. Ketcham, 84 Wis. 60, 68, 69, and! cases cited; Woodward v. Brooks, 128 Ill. 222. Nor could! the assignee take a larger title in the bond than his assignor had. He could take it only subject to the valid claims of the policy-holders for whose protection it had been pledged. So it would seem that the complaint does state a good cause of action in favor of the plaintiff John Hughes, and of such other persons as have like claims. The complaint state» that there are many creditors having like claims, and asks relief for them as well as for the plaintiffs named. R. S. sec. 2604; Day v. Buckingham, 81 Wis. 215.

This cause of action seems to be clearly within the jurisdiction of the circuit court for Dane county. But the complaint states this one cause of action only, in favor of such plaintiffs. It does not state a cause of action for a creditors* bill on behalf of such plaintiffs. It at least fails to show that such creditors have exhausted their remedy at law by obtaining judgment and issuing execution {Northwestern I. Co. v. Central T. Co. 90 Wis. 570), and so fails to show that, they are entitled to that remedy.

The other plaintiffs named in the complaint have no interest in the bond as a pledge or security. It was not deposited for a security to them. They aremot, in any sense; cestuis gue trustent of the bond. If they have any relation to or interest in the bond, it is such relation or interest as is given by the creditors’ bill. And this could give them a remedy only in the surplus which shall remain after the claims of the creditors for whose security it was pledged have been satisfied. The complaint seems to state a cause of action m favor of these plaintiffs for a creditors’ bill and a remedy by way of such possible surplus. But it does not show that they have any interest in the cause of action of the plaintiff John Hughes and the creditors having like claims with him. So it seems to be sufficiently clear that the complaint states at least two different causes of action (Leidersdorf v. Second Ward S. Bank, 50 Wis. 406), which are improper to be joined because neither of them affects all the parties to the action. E. S. sec. 2647; Hoffman v. Wheelock, 62 Wis. 484. On this ground the order sustaining the demurrers is right. The order, being right, must be affirmed, even if the reasons given by the trial court were erroneous.

By the Gourt.— The order of the circuit court is affirmed, and the cause remanded for further proceedings according-to law.