Banking Comm'n of Wis. v. Muzik

• Decision Date: 06 November 1934
• Citation: 257 N.W. 174,216 Wis. 596
• Parties: BANKING COMMISSION OF WISCONSIN v. MUZIK.
• Court: Wisconsin Supreme Court

216 Wis. 596

257 N.W. 174

BANKING COMMISSION OF WISCONSIN

v.MUZIK.^a1

Supreme Court of Wisconsin.

Nov. 6, 1934.

Appeal from an order of the Circuit Court for Milwaukee County; August E. Braun, Circuit Judge. Reversed.

Action by the Banking Commission of Wisconsin against Anna L. Muzik, as executrix of the will of John Muzik, deceased, commenced April 11, 1934. From an order sustaining a demurrer to the answer to the complaint, entered June 6, 1934, the defendant appeals.

Beuscher & Beuscher, of Milwaukee (Ronold A. Drechsler, of Milwaukee, of counsel), for appellant.

H. W. Schuler, of Milwaukee, for respondent.

FOWLER, Justice.

The action is by the banking commission of the state to recover from the executrix of a deceased stockholder of a state bank in liquidation by the commission the amount of the superadded stockholders' liability. The plaintiff demurred to the answer on the ground of insufficiency of facts stated to constitute a defense. The demurrer was overruled, and the defendant appeals.

The alleged defense is that the former commissioner of banking, of whom the plaintiff is the successor, took charge of the bank on July 18, 1932; that the stockholder, of whom the defendant is the personal representative, died on August 29, 1932; that in course of the administration of the estate of the deceased stockholder the county court made an order limiting the time in which claims against the estate might be filed to the first Tuesday in February, 1933, and requiring that all claims against the estate be heard on the first Tuesday in May, 1933; that due notice of these matters was given; and that the plaintiff failed to file its claim as required by the order limiting the time for filing. The contention of the defendant is that these facts show that the plaintiff's claim is barred by the nonclaim statute (section 313.08, Stats. 1933), which provides that every person having a claim proper to be allowed by the county court who after the statutory notices of the time for filing and hearing claims has been given shall not file his claim within the time limited “shall forever be barred” from recovery on his claim.

[1] There is no question that no recovery can be had in ordinary cases upon claims not prosecuted within the time fixed by the court order. In re Lathers' Estate (Wis.) 251 N. W. 466. The claim against the deceased became due when the former commissioner of banking took over the affairs of the bank. Section 221.42, Stats. 1933. As the commissioner took over the affairs of the bank prior to the stockholder's death, the claim became due prior to his death, and became one against his estate, and by the statutory provisions relied upon the position of the appellant in the case of an ordinary claim would be well taken.

[2] The question for determination thus is whether enforcement of a claim against the estate of a deceased stockholder of a state bank for the stockholder's superadded liability which accrued during the stockholder's lifetime is on a different footing from any other claim that accrued during the decedent's lifetime.

The reason for the statutory nonclaim provision is that the advantages to persons interested of speedy and stable final determination of the administration of the estates of deceased persons secured by the provision overbear the disadvantages to claimants through losses sustained as a result of their noncompliance with the provision. This is the legislative conclusion. That being the legislative conclusion, it must be given effect in claims against the estates of deceased stockholders to enforce their statutory liability, unless from other statutory provisions the contrary clearly appears. Two statutes are relied on by the respondent as avoiding the effect of the nonclaim statute. One is section 287.17, Stats. 1933, providing that no action shall be commenced against an executor or administrator except in certain ones specified including one to enforce the liability of stockholders. This provision was enacted into the section by chapter 5, Laws of 1899. At that time the only remedy for enforcing the liability of stockholders was through an action by a creditor to which all stockholders were made parties. Gianella v. Bigelow, 96 Wis. 186, 71 N. W. 111. The power of county courts was considered inadequate for want of authority to bring in all stockholders. When the case above cited was decided, the only exceptions stated in the statute were actions for the recovery of real or personal property or actions to establish, enforce, or foreclose a lien on such property. The amendment of 1899 followed the decision of this case and included actions to enforce the liability of stockholders, together with actions to quiet title, remove a cloud on title, construe wills, avoid fraudulent conveyances, and affect or pass title to real property, “and other actions to which the county court cannot afford a remedy as adequate, complete, prompt or efficient as the circuit court.” The manifest reason for including actions to enforce stockholders' liability was that the county court did not afford an adequate remedy. The reason for the rule does not now obtain, as the Banking Code enacted by chapter 234, Laws of 1903, and amended by chapter 168, Laws of 1915, has now provided that the liability may be enforced by an action at law (Schwenker v. Bekkedahl, 204 Wis. 546, 236 N. W. 581), and the liability accrues when the commission takes over the affairs of the bank. The liability is also for the full amount of the superadded liability, instead of as under the former equity practice, for such part thereof as was necessary for purposes of liquidation. Section 221.42 Stats. Thus when the commission takes over the affairs of a bank during the life of a stockholder who subsequently dies before an action...