73 N.W. 788 (Wis. 1898), State ex rel. Fowler v. Circuit Court for Green Lake County

Citation:73 N.W. 788, 98 Wis. 143
Opinion Judge:SILAS U. PINNEY, J.
Party Name:THE STATE EX REL. FOWLER v. THE CIRCUIT COURT FOR GREEN LAKE COUNTY
Attorney:C. A. Fowler, relator, pro se. John J. Wood, Jr., for the respondent, contended, inter alia, that the fact that the defendant was a foreign corporation and that the courts of its domicile had appointed a receiver for it is a sufficient basis for the Wisconsin bill.
Case Date:January 11, 1898
Court:Supreme Court of Wisconsin
 
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Page 788

73 N.W. 788 (Wis. 1898)

98 Wis. 143

THE STATE EX REL. FOWLER

v.

THE CIRCUIT COURT FOR GREEN LAKE COUNTY

Supreme Court of Wisconsin

January 11, 1898

Argued: October 5, 1897

Page 789

CERTIORARI to review proceedings of the circuit court for Green Lake county: GEO. W. BURNELL, Circuit Judge. Reversed.

This was a certiorari issued to review the proceedings of the circuit court for Green Lake county against Chester A. Fowler for an alleged criminal contempt, for which, upon conviction, he was adjudged to pay a fine of $ 200 and costs, taxed at $ 17.70, and in default of payment to be imprisoned in the county jail until such fine and costs were paid, not exceeding thirty days.

The proceedings were instituted by an order requiring said Fowler and one D. W. McNamara to show cause on, etc., why they, and each of them, should not be adjudged guilty of wilful disregard and disobedience of an injunctional order entered in the circuit court for Green Lake county March 31, 1897, in the case of the Hibernian Banking Company, a foreign corporation, plaintiff, against the Berlin & Montello Granite Company, defendant, also a foreign corporation, enjoining and restraining "all creditors of the defendant, and all other persons who had not then brought suits against it, from bringing any action at law or in equity against the defendant, or from in any manner interfering with its property," and why the said Fowler and McNamara should not be punished accordingly. The injunctional order referred to was contained in an order appointing a receiver in the action in Green Lake county for the Wisconsin property of the Berlin & Montello Granite Company, as auxiliary or ancillary to a receivership ordered on the same day by the circuit court of Cook county, Illinois. The contempt charged was the bringing of an action by the relator, Fowler, as attorney for A. G. Becker & Co., also a foreign corporation, in the circuit court for Milwaukee county, against the defendant in the present action, and recovering judgment therein against the defendant corporation in favor of said A. G. Becker & Co. for about $ 25,000, after the issuing, and with knowledge of the existence, of the said injunctional order.

The relator, Fowler, objected to the jurisdiction of the circuit court for Green Lake county, that the act charged did not constitute on his part any neglect or violation of duty or misconduct by which the rights or remedies of a party to any action depending or triable in said court had been or might be impaired, impeded, defeated, or prejudiced, and that the alleged contempt was charged as a criminal contempt, and the proceedings against him were not brought in the name of the state of Wisconsin, and, further, that he was not charged with disobedience of any process or lawful order of the court. He contended that the injunctional order was issued without authority, and was void.

The complaint in the action wherein the injunctional order had been entered stated, in substance, that the Berlin & Montello Granite Company, an Illinois corporation, was indebted to the plaintiff in the action, the Hibernian Banking Company, in various sums, upon causes of action therein set out, and, among other things, upon a judgment obtained by the plaintiff against the defendant on the 9th of March, 1897, in the circuit court of Du Page county, Illinois, for $ 3,200 damages and costs, and it alleged that an execution had been issued on said judgment, and returned wholly unsatisfied; that the defendant in the action was the owner of a granite quarry located at Berlin, Wisconsin, and valuable quarries at Montello, in said state, and had operated a quarry at Waterloo, under a lease thereof; that its property consisted almost wholly of quarry properties and lands used in connection therewith, and the buildings, machinery, and necessary equipment for operating the said quarries, together with a lease of the property at Waterloo, and that prior to the 1st of March, 1897, the defendant was the owner and in possession of a large amount of personal property, of great value, located at its quarry in Berlin, consisting of tools and equipments, and finished and unfinished product of the quarry then upon the grounds, and owned other similar property at Montello; that prior to March 1, 1897, judgments had been given and attachments issued and obtained in divers actions against the defendant, and said personal property had all been sold at execution sale, except finished and partially finished monuments, and building stone, paving blocks, and crushed granite, which had a market value of many thousand dollars if the same could be sold to the best advantage; that said property had been attached and levied upon by divers writs for about $ 7,000; that it was worth more than $ 20,000; that the real estate of the defendant had been seized and levied on, under like writs of attachment, for large sums of money, and the defendant was indebted to various persons, aggregating in all $ 170,000; that it was insolvent, and its assets wholly insufficient to meet its obligations and liabilities; that its property of every kind and description in the state of Wisconsin would not exceed the value of $ 140,000; that in the circuit court for Cook county, Illinois, on the application of the plaintiff, the Hibernian Banking Company, C. B. Beech had been appointed receiver of the assets and property of the defendant, of every name, kind, or description, and that he had qualified and was acting as such receiver; that said property would be sacrificed at the sheriff's sale unless a receiver should be appointed, with authority to borrow money to pay said execution and judgment liens; and that the said property, and the rents, issues, and profits thereof, were in danger of being lost or materially impaired, to that extent that the plaintiff could not, without the relief prayed for, make the amount of its claim.

It demanded judgment: (1) For the amount due and owing to it from the defendant, with costs and disbursements. (2) That all the property of the defendant in the state of Wisconsin be impounded and sequestrated; that the same person appointed receiver by the circuit court of Cook county, Illinois, be appointed receiver for the circuit court for Green Lake county, clothed with the usual authority, etc., and vested with all its title and all its property, real and personal, in the state of Wisconsin; and that he be authorized to borrow money and pledge the property of the defendant in Wisconsin for the payment of such liens, to pay the outstanding claims and judgments against said property. (3) That said receivership be auxiliary to the receivership existing by virtue of the proceedings in the state of Illinois, as an aid thereto. (4) That an injunction be granted, restraining all creditors of said defendant in Wisconsin from bringing any other action or suit at law against the defendant, and that all its creditors have leave to join in said action, sharing expenses, and that they be required, within such time as the court might order, to file their several claims with the receiver, and prove the same,--and for such further and other relief as should be just and equitable.

March 31, 1897, C. B. Beech was appointed receiver of all the debts, property, real and personal, equitable interests, rights, and things in action, of the defendant in the state of Wisconsin, and, upon filing his bond, was to be invested with the usual rights and powers of a receiver, according to law; and he was ordered to proceed to aid and assist in the winding up of said Berlin & Montello Granite Company then proceeding in the circuit court of Cook county, Illinois, to which this proceeding was said to be ancillary.

It was not alleged in the action that the plaintiff had recovered any judgment in any court of Wisconsin against the Berlin & Montello Granite Company, or that it had obtained any attachment or other lien upon any of its property in that state, and there was no allegation to show that the said Hibernian Banking Company occupied any other position than that of a creditor at large of the defendant.

Order reversed and cause remanded.

C. A. Fowler, relator, pro se.

John J. Wood, Jr., for the respondent, contended, inter alia, that the fact that the defendant was a foreign corporation and that the courts of its domicile had appointed a receiver for it is a sufficient basis for the Wisconsin bill. The courts of one state, by the exercise of interstate comity, will aid and assist a foreign receiver, where the same may be done without prejudicing the interests of...

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