State ex rel. Fourth Nat. Bank of Phila. v. Johnson

• Decision Date: 05 September 1899
• Citation: 103 Wis. 591,79 N.W. 1081
• Parties: STATE EX REL. FOURTH NAT. BANK OF PHILADELPHIA ET AL. v. JOHNSON, JUDGE, ET AL.
• Court: Wisconsin Supreme Court

103 Wis. 591

79 N.W. 1081

STATE EX REL. FOURTH NAT. BANK OF PHILADELPHIA ET AL.

v.JOHNSON, JUDGE, ET AL.

Supreme Court of Wisconsin.

Sept. 5, 1899.

Proceeding in mandamus and certiorari on relation of the Fourth National Bank of Philadelphia and others against Daniel H. Johnson, judge of the circuit court of Milwaukee county, and G. Ringenoldus, clerk of said court. Peremptory writ of mandamus awarded.

On the 1st day of June, 1893, the Plankinton Bank, a state banking corporation of Milwaukee, executed to William Plankinton, its vice president, a voluntary assignment for the benefit of its creditors, and the assignee qualified, and entered upon the duties of his trust. On the 21st of the same month the assignee filed schedules showing the face values of the assets of the bank to be $1,846,851.67, and its liabilities to be $1,430,343.68. Thereafter the assignee proceeded with the administration of the assigned estate, but rendered no account of his administration until July 1, 1898, when, pursuant to an order of court, he filed what purported to be an account of his receipts and disbursements, with a statement of the dividends paid to creditors. The account came up for hearing, after notice by mail to the creditors who had proven their claims, on August 10, 1898. On that day general objections to the account were made by certain creditors, and a motion made to require the account to be made more definite and certain, and the court made no decision, but took the whole matter under advisement until May 9, 1899, when the court, without notice, made an order confirming the report and account of the assignee (except as to the compensation of the assignee) as a full accounting of all acts up to July 1, 1898, and extended the time for settlement of the estate until January 1, 1900. On the following day the assignee presented to the court his resignation, and the same was accepted, but not to take effect until the final confirmation of the assignee's account; and the matter was referred to Court Commissioner Ryan to state and report the assignee's account since July 1, 1898, and also the amount of compensation which the assignee should receive; and it was further ordered that until “the allowance and confirmation of said account” and the final discharge of the assignee he continue to perform the duties of his office. On the said 9th day of May, upon petition of certain creditors, Hon. Fred Scheiber, a circuit court commissioner, made an order requiring the assignee and Frederick T. Day and others, who were alleged to be officers of the insolvent bank, to appear before him on the 17th of the same month, and submit to an examination under oath as to the business affairs and condition of the assignor before and since the assignment. Immediately following these orders, motion was made by the assignee to set aside the order of Court Commissioner Scheiber, and counter motions were made by the creditors to set aside the orders of May 9th and 10th, and to allow examination of the books and of the bank officers before the court. Numerous affidavits were submitted on both sides upon the several motions, and on June 9th following the court vacated the order of Court Commissioner Scheiber, denied the motion for examination of the bank officers before the court, and denied the motion to vacate the orders of May 9th and 10th. On the 7th day of June the court also denied the motion to require the assignee's account to be made more definite and certain, which had been held under advisement since August 10, 1898. On the 14th of June a further order was made, amending the order of June 7th so as to show that the motion to make the account more definite and certain was based upon all the records and files in the assignment proceedings, as well as upon affidavits. In this condition of the record an order to show cause was issued by the chief justice of this court, at chambers, based upon a verified petition of the creditors who had appeared in the circuit court, setting forth the foregoing facts, which order was directed to the circuit judge, and required him to show cause before this court on the 22d of June following why the petitioners should not be allowed to examine the assignee and officers of the bank, and file objections to the assignee's account, and why the orders denying such examination, as well as the orders of May 9th and 10th and of June 7th and 14th, should not be vacated. This motion was argued on the return day, and taken under advisement until July 3d following, at which time the motion was denied. In the meantime, however, a petition had been filed by the appealing creditors, setting forth the facts above stated, and praying for the issuance by this court of a writ of mandamus requiring the circuit court to vacate the aforesaid orders, and grant the relief prayed for by the previous petition; and this court on the 28th of June issued an alternative writ of mandamus as prayed, directed to the circuit judge, returnable on the 3d of July following, and at the same time, of its own motion, issued its writ of certiorari as auxiliary to the writ of mandamus to the clerk of said circuit court commanding him to certify and return the account of the assignee, and the various orders in question, and all records and files upon which they were based, in order that the same might be present in court upon the hearing of the alternative writ of mandamus. Upon the return day of the two writs the clerk first made a special return to the writ of certiorari, seeking to excuse himself from returning the original record on the ground that the trial court had made no order authorizing the transmission of the original papers to this court; but the objection was summarily overruled, and the original papers were at once returned in obedience to the writ. Thereupon the circuit judge made his return to the alternative writ as follows:

“It is true that in a certain proceeding of the voluntary assignment of the Plankinton Bank, pending in the circuit court of Milwaukee county, the respondent, as judge of said court, on the 9th day of May, A. D. 1899, made and entered an order confirming an account of William Plankinton, the assignee of said bank, filed in said court on the 1st day of July, 1898. It is also true that in and by said order time for the settlement of said assigned estate was extended to the 1st day of January, 1900. It is also true that on the 10th day of May, 1899, the respondent, as judge of said court, did enter a further order in said assignment proceedings, accepting the resignation of William Plankinton as assignee. It is not true that said order relieved said assignee from the statutory duty of filing an account, but it was the true intent and meaning of said order to refer the taking of said account in the first instance to Hugh Ryan, Esq., the commissioner therein named; that said assignee was to file his account with said commissioner, to act thereon as directed in said order, and report the same for final action to the court. It is true that said order provided that said William Plankinton continue to act as assignee until his account was stated and settled, and that the appointment of his successor be reserved until said time. It is true that, after being moved so to do, the respondent, as such judge, refused to vacate and set aside the said order. It is not true that the order confirming said report was made without notice to the creditors of said assigned estate. Upon that subject, and in reference to the motion to make said account more definite and certain, mentioned in said writ, respondent states the following facts:

The Plankinton Bank made an assignment June 1, 1893. In due time an inventory of assets and a list of creditors were filed, as required by section 1697 of the Revised Statutes, then in force. Thenceforth, from time to time, many and repeated applications for direction in the administration of the affairs of the bank were addressed to said court or the undersigned by the assignee, and orders made thereon, all of which remain of record in said proceeding. It was impracticable to close the affairs of said bank within six months. The progress of settlement was inevitably slow. Dividends were paid from time to time as money was realized. No requirement was made for the filing of an account by the assignee until the 28th day of May, 1898, when, upon application of a creditor, the assignee was ordered to make and file a report and itemized account on the 1st day of July, 1898. On July 1, 1898, a report and itemized statement of account were filed by the assignee. A notice signed by said assignee, to the effect that he had filed his report containing a statement of his transactions, receipts, and disbursements down to 1st of July, 1898, and should ask for an order of the court confirming said report, and directing his compensation as assignee thus far on the 16th day of July, 1898, at ten o'clock a. m., was mailed to each and every creditor of said bank, as appears by affidavit on file. Said notice having been given for a sufficient length of time, the hearing was postponed to August 10, 1898, and a further notice directed to be given. A further notice was then given by the assignee by postal card to the effect that said assignee had filed his account as such in the office of the clerk of this court on the 1st day of July, 1898, and should apply to the court on August 10th, at ten o'clock a. m., for an order confirming the same. Proof of the due and proper mailing of such postal cards to all the creditors of said bank was presented to respondent at the hearing. Objections to said account were filed on and before the 10th day of August, 1898, by several creditors, all of which were general, and referred to no particular part, subject-matter, or item thereof. No objections or exceptions to said report and account were filed by either the Fourth National Bank of Philadelphia, Pa., the...