Seering v. Black

140 Wis. 413 | Wis. | 1909

Lead Opinion

BaeNes, J1

By sec. 1764, Stats. (1898), the directors of the dissolved corporation were continued in office for the purpose of selling and disposing of its property, collecting its •debts, paying its obligations, and distributing its assets among its stockholders. Lindemann v. Rusk, 125 Wis. 210, 104 N. W. 119. Taking as a verity the averments of the com- ■ plaint, the defendants have wholly failed to perform the -duties imposed on them by law. By such conduct they are depriving the plaintiff of his share of the corporate assets and correspondingly enriching themselves. That a court of equity has power under such circumstances at the suit of a ■stockholder to entertain a winding-up suit and to appoint a receiver to perform the functions which the defendants have 'wrongfully and fraudulently refused to perform does not admit of doubt. 2 Cook, Corp. §-641; Lindemann v. Rusk, supra; Elmergreen v. Weimer, 138 Wis. 112, 119 N. W. 836. The complaint states sufficient facts to constitute a cause of action.

That tbe complaint does not improperly unite several causes of action is not so clear. An inference might well be-drawn that a money judgment in favor of plaintiff as a. creditor was sought in this action, and also that a like judgment in favor of the corporation was sought against John and Joseph Black on an ordinary account alleged to be due from. them to it Such relief cannot be granted in a winding-up-suit. Harrigan v. Gilchrist, 121 Wis. 127, 240, 99 N. W. 909. Equity will entertain a suit by a creditor to wind up-the affairs of an insolvent or of a dissolved corporation. Killen v. Barnes, 106 Wis. 546, 559, 82 N. W. 536; Gores v. Day, 99 Wis. 276, 74 N. W. 787. But we are not prepared to say that the general rule that only a judgment creditor may maintain such a suit is not applicable to a corporation-dissolved by operation of law. The allegation in the complaint to the effect that plaintiff is a creditor is proper enough, even though he is not presently entitled to maintain the action as such. We see no impropriety in placing a fairly complete-history of the condition and affairs of the corporation before the court in the suit of plaintiff as a stockholder. The ambiguity arises out of the demand for judgment. If the-pleader intended to set out more than one cause of action, he-did not follow sec. 2647, Stats. (1898), which requires that different causes of action be stated separately. We think the prayer for relief may be construed as a demand by tke-plaintiff that the receiver pay him the amount found to be his due, after he has filed his claim and proved it in the-receivership proceedings in the manner provided by law, and that the defendants John and Joseph Black be obliged to pay to the receiver as the representative of-.the corporation the-amount found to be due from them in an appropriate proceeding brought for the purpose of compelling such payment. So construed, the complaint states but a single cause of action. The mere fact that the plaintiff is asking for unnecessary or-even improper relief does not in itself show that more than one cause of action is stated.

By the Court. — Order affirmed.

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Concurrence Opinion

TimliN, J.

I concur in the opinion written by Justice Barhes, but I do not think it is an open question in this state whether a creditor who has not recovered a judgment can maintain such an action as this against such a corporation. I do not think any doubts on this barren, outworn, and quite useless technicality of practice should be revived, especially when the action is to enforce a trust or fiduciary duty. The statute is sec. 3223, Stats. (1898). The cases are Sleeper v. Goodwin, 67 Wis. 577, 31 N. W. 335; Michelson v. Pierce, 107 Wis. 85, 82 N. W. 707; Booth v. Dear, 96 Wis. 516, 71 N. W. 816, and other cases.

“Liability created by law.” Hurlbut v. Marshall, 62 Wis. 590, 594, 595, 22 N. W. 852. This also has been since followed; all of which may be found by any one having the time and industry so to do.

Marshall, J., dissents.