Pierce v. Milwaukee Construction Co.

38 Wis. 253 | Wis. | 1875

Lyon, J.

This is doubtless a good complaint under ch. 303, Laws of 1860 (Tay. Stats., 1568, §§ 112, 113), which gives a judgment creditor, after execution returned unsatisfied, an action against the judgment debtor and any other person or corporation, to compel a discovery of the property, etc., of the debtor, due to or held in trust for him, to enjoin the transfer thereof, and to obtain satisfaction of the judgment out of the same. Hence, if an action under that statute can be maintained against a domestic corporation, these demurrers should have been overruled.

Certainly the language of the statute is sufficiently comprehensive to include this case, for it authorizes the action (under the conditions therein expressed) against any judgment debtor. .But it is claimed that ch. 148, R. S. (secs. 18 and 19), excludes all actions or proceedings by a creditor against an insolvent domestic corporation, other than that therein prescribed. We think the position is well taken, but with the qualification that a judgment creditor may proceed against such corporation under the law of 1860 — that is by creditor’s suit, — until some other creditor commences proceedings under ch. 148, and obtains an injunction under sec. 87 restraining the proceedings in the creditor’s suit. This view was sustained by this court in The Ballston Spa Bank v. The Marine Bank of Milwaukee, 18 Wis., 490. Although that was a proceeding supplementary to execution, the principle of the decision is applicable to this case. It not appearing that any proceedings have been instituted under ch. 148 by any other creditor of the defendant corporation, we conclude that the demurrer should have been overruled.

The foregoing views render it unnecessary to determine wh,ether the complaint is also a good petition under sec.- 18, ch. 148, R. S. It may be observed, however, that the difference between a complaint and a petition is merely formal, and that if the plaintiffs desire to proceed under the latter statute, they may do so. But in such case it would be the safer practice to amend the complaint by setting forth that the proceeding is in behalf of all creditors of the defendant corporation; and by making all of the stockholders thereof parties defendant to the action, if there are any who are not already made defendants thereto. See Adler v. The Milwaukee Patent Brick Manufacturing Co., 13 Wis., 57.

By the Court. — The orders of the circuit court sustaining the demurrers are reversed, and the cause remanded for further proceedings according to law.

Ryan, 0. J., took no part in the decision of this cause.