Kalb v. Luce

• Decision Date: 17 May 1938
• Parties: KALB v. LUCE et al.
• Court: Wisconsin Supreme Court

228 Wis. 519

279 N.W. 685

KALB

v.LUCE et al.^*

Supreme Court of Wisconsin.

May 17, 1938.

Appeal from an order of the Circuit Court for Walworth County; Edgar V. Werner, Judge.

Affirmed in part; reversed in part.

This action was commenced on September 1, 1937, by Ernest Newton Kalb, plaintiff, against Roscoe R. Luce, county judge for Walworth county, Henry Feuerstein, Helen Feuerstein, and George O'Brien, sheriff, charging the defendants with conspiracy, assault and battery, and false imprisonment. There was a demurrer to the complaint and from an order sustaining the demurrer entered December 23, 1937, the plaintiff appeals. All of the parties to the action reside in Walworth county.

Prior to March 7, 1933, the plaintiff and his wife had executed and delivered to the defendants Feuerstein a mortgage to secure an indebtedness. Proceedings were begun and a judgment of foreclosure was entered on April 21, 1933. On October 2, 1934, the plaintiff filed a petition under the Frasier-Lemke Act, Bankr. Act § 75 (s), 11 U.S.C.A. § 203 (s). No stay of proceedings was granted either in the state or the federal court. On June 27, 1935, the plaintiff's petition was dismissed by the federal court. The Feuersteins then proceeded in the state court and a sheriff's sale was held July 20, 1935. A sheriff's deed was delivered to the purchaser August 2, 1935, and the sheriff's sale on due notice was confirmed September 16, 1935.

On August 28, 1935, Congress passed the second Frasier-Lemke Act, Bankr. Act § 75, as amended, 11 U.S.C.A. § 203. On September 6, 1935, plaintiff's petition in the bankruptcy court was reinstated and the order of June 27, 1935, vacated. No stay of the foreclosure proceeding was entered or applied for in either the state or the federal court.

Upon the petition of the plaintiffs in the foreclosure action on December 16, 1935, a writ of assistance fair on its face was delivered to the defendant George O'Brien, as sheriff. On March 12, 1936, the sheriff ejected the plaintiff from the mortgaged premises.

For his first cause of action the plaintiff charges the defendants with conspiring and colluding together to acquire possession of his farm and seeks to recover damages for being deprived of the use thereof in the sum of $7,000.

The second cause of action charges the defendant George O'Brien with assaulting and beating the plaintiff pursuant to the direction of the other defendants. The third cause of action charges the defendants with false imprisonment and seeks to recover damages therefor.

The demurrer to the complaint was on two grounds: (1st) On the ground that it stated no cause of action against the defendants; and (2d) that several causes of action were improperly joined. The court sustained the demurrer as to the first and third causes of action as to all of the defendants;as to the second cause of action it sustained the demurrer as to Luce and the defendants Feuerstein but held that it stated a good cause of action against the defendant O'Brien for assault and battery and the defendant O'Brien was given 20 days in which to plead.

J. J. McManamy, of Madison, for appellant.

Thorson & Seymour, of Elkhorn, and Moran & O'Brien, of Delavan, for respondents.

ROSENBERRY, Chief Justice.

Upon this appeal the plaintiff contends that on and after September 6, 1935, when plaintiff's petition in the bankruptcy court was reinstated, the county court for Walworth county was wholly without jurisdiction to proceed to confirm the sale held August 2, 1935, and to execute the judgment of foreclosure. Plaintiff's contention arises under the amendment to section 75 of the Bankruptcy Act enacted by Congress August 28, 1935, 11 U.S.C.A. § 203 (n), which is printed in the margin.¹

[1] It is the contention of the plaintiff that this statute is self executing-that is, that it requires no application to the state or federal court in which foreclosure proceedings are pending for a stay; in other words, that it provides for a statutory and not for a judicial stay. Plaintiff's claims under the Bankruptcy Act present a question which clearly arises under the laws of the United States and therefore present a federal question upon which determination of the federal courts is controlling.

[2] It has been held by the Circuit Court of Appeals for the Ninth Circuit, Hardt v. Kirkpatrick, 1937, 91 F.2d 875, that a stay provided for by section 75 ( o) and section 75 (s), as amended, 11 U.S.C.A. § 203 ( o, s), is a judicial stay and not a statutory stay. While the plaintiff in this action claims his rights under section 75 (n) the same reasoning applied in the Hardt...