Charness v. Katz

• Court: U.S. District Court — Eastern District of Wisconsin
• Writing for the Court: DUFFY
• Citation: Charness v. Katz, 48 F.Supp. 374 (E.D. Wis. 1943)
• Decision Date: 23 January 1943
• Docket Number: Civ. A. No. 910.
• Parties: CHARNESS v. KATZ et al.

48 F. Supp. 374

CHARNESS v. KATZ et al.

Civ. A. No. 910.

District Court, E. D. Wisconsin.

January 23, 1943.

Gold & McCann and E. M. Sullivan, all of Milwaukee, Wis., for plaintiff.

Becker & Meldman and Edward H. Meldman, all of Milwaukee, Wis., for defendants.

DUFFY, District Judge.

The matter before the court is a motion by the defendants to dismiss the complaint because it fails to state a claim against the defendants upon which relief can be granted.

The complaint alleges that the plaintiff is the duly appointed and qualified trustee of the bankrupt, and that the referee in bankruptcy has ordered him to commence the action in question. The residence of all three defendants is alleged to be in Milwaukee, Wisconsin. The matter in controversy is alleged to exceed $3,000. The complaint then continues: "Upon information and belief the bankrupt above named, between the dates of August 4, 1941, and August 17, 1942, by playing at the game of dice lost and delivered to the said defendants the sum of eleven thousand dollars ($11,000.00)."

The action is apparently brought under Sec. 348.10, Wisconsin Stats., which reads in part as follows: "Recovery of money wagered. Any person who, by playing at any game or by betting or wagering on any game, * * * sport or pastime or on the issue or event thereof * * * shall have put up, staked, or deposited with any stakeholder or third person any money, * * * or shall have lost and delivered the same to any winner thereof may * * * within six months after any such delivery by such person or stakeholder, sue for and recover such money, * * * from the winner thereof if the same has been delivered over to such winner; and if he shall not so sue for and recover such money * * * within the time above limited then any other person may, in his behalf and in his name, sue for and recover the same for the use and benefit of his family or his heirs, in case of his death, from such stakeholder or third person if the same is still held by him, within six months after such putting up, staking or depositing, or from the winner thereof within one year from the delivery thereof to such winner."

The action was commenced on December 14, 1942, which is within six months of the date last mentioned in the complaint but considerably more than six months from the first date specified.

There is authority for holding that as a matter of proper pleading it is not necessary to set forth the specific days and dates upon which the losses were incurred. Clark v. Slaughter, 129 Wis. 642, 109 N.W. 556; Boyce v. Odell Commission Co., C.C., 107 F. 58. These authorities do not hold, however, as plaintiff contends, that the statute of limitations would be suspended for the entire period. If the trustee may bring this action at all, recovery would have to be confined to those losses which were sustained within the six months prior to December 14, 1942.

The important question to be decided is whether the cause of action which existed in the bankrupt now exists in the trustee. Sec. 70 of the Bankruptcy Act, Title 11 U. S.C.A. § 110, provides: "The trustee * * * shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition in bankruptcy * * * to all * * * (5) property, including rights of action, which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered; Provided, That rights of action ex delicto for libel, slander, injuries to the person of the bankrupt or of a relative, whether or not resulting in death, seduction, and criminal conversation shall not vest in the trustee unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration, or other judicial process; * * * (6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his property; * * *."

The determination of the question whether the cause of action passes to the trustee under clauses (5) or (6) depends on Wisconsin law. In re Berry, D. C., 247 F. 700; In re Shenberger, D. C., 102 F. 978; In re Martin, 6 Cir., 47 F.2d...