Swing v. White River Lumber Co.

91 Wis. 517 | Wis. | 1895

Finney, J.

In Gilman v. Ketcham, 84 Wis. 60, it was held that a foreign receiver will be heard to assert in the courts of this state a title to a chose in action which he claims by an assignment valid and binding against all parties to the litigation. This ruling was applied in Parker v. Stoughton Mill Co., ante-, p. 174, where a foreign receiver had been invested by a court of competent jurisdiction of the state of Illinois with the practical ownership of choses in action belonging to an insurance company of that state, the affairs of which were being wound up and its property applied to the payment of its losses, etc.; and an action in the name of such receiver, upon an assessment of a premium note, was sustained upon the principles of judicial comity laid down in Gilmcm v. Ketoham, supra. But in Parker v. Stoughton Mill Go. it was alleged in the complaint, in addition to the appointment of the receiver, that by ch. 73 of the General Statutes of Illinois, by virtue of his appointment, he had power to prosecute and defend suits in the name of the corporation or in his own name, and by reason thereof was vested with authority to bring and-maintain the action. The proceeding in the supreme court of Ohio, to which reference is made in the complaint, was doubtless regulated by statutory authority, and the powers and duties of the trustee in such cases are probably prescribed by the statute of that state, or the order or judgment appointing him, but this court cannot take judicial notice of the statutes of another state, or of the proceedings in its courts. They must be pleaded and proved as facts whenever any right is claimed under them. Presumably, at least, the powers' and duties of such trustee are similar to those of a receiver in equitable actions or proceedings, in respect to which it is, in general, considered necessary that he should set out in his pleading, when he sues, the authority under which he assumes to act,— as his appointment by a court of competent jurisdiction in a case within its jurisdiction, and that he has authority to prosecute the action. The rule is quite general that he may not sue without having first obtained, in some form, leave of the court, unless authorized by statute to bring actions. Beach, Receivers, §§ 650, 693, and cases cited; 20 Am. & Eng. Ency. of Law, 229. Where the rights of such an officer do not rest merely upon his appointment by the court of another state, but there has been an assignment to him in his official capacity of the property in question, or by virtue of the statute of such state the title to the property is vested in him, he may, it seems, sue and recover the same, not strictly by virtue of his appointment, but by reason of his title, he being considered for that purpose substantially an assignee. High, Receivers, § 244; Gilman v. Ketoham, 84 Wis. 60. The complaint does not allege that by the laws of the state of Ohio, or by the judgment or order of the supreme court of that state, the plaintiff, as trustee, has any title, right, or authority whatever to sue for and recover the assets of the Union Mutual Eire Insurance Company, or that any assignment of such assets had been made to him, and it therefore fails to show facts sufficient to entitle plaintiff to sue for and recover the assessment in question. The defendant was not bound to plead the objection in abatement. It appeared on the face of the complaint that the plaintiff had no legal capacity to sue, as such trustee, in the courts of this state, in respect to the demand in question, and had no title, as such, to recover the same. The demurrer should have been sustained.

By the Gouri.— The order of the circuit court is reversed, and the case is remanded with directions to sustain the defendant’s demurrer, with leave to the plaintiff to amend on terms.