Day v. Buckingham

• Decision Date: 23 February 1894
• Citation: 58 N.W. 254,87 Wis. 215
• Parties: DAY ET AL. v. BUCKINGHAM ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 215

58 N.W. 254

DAY ET AL.

v.BUCKINGHAM ET AL.

Supreme Court of Wisconsin.

Feb. 23, 1894.

Appeal from circuit court, Ashland county; J. K. Parish, Judge.

Action by F. D. Day and others against W. B. Buckingham and others, impleaded with the Nimikon Iron-Mining Company and others. From an order denying certain motions on behalf of defendants, defendants appeal. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

The amended complaint alleges, in effect, that the plaintiffs, being 19 in number, bring this suit on their behalf, and on behalf of all other creditors of the defendant corporation having claims similar to theirs, to wit, for work, labor, and services, against the said corporation, and against the other defendants as stockholders thereof, due to the clerks, servants, and laborers of the defendant corporation for services rendered to said corporation by them as such, not exceeding six months' services in any one case; that at the times mentioned the said corporation was duly organized under the laws of this state; that the capital stock thereof was the sum of $1,000,000, divided into 40,000 shares of $25 each; that the other defendants were stockholders thereof, and the holders of stock therein, to the number of shares set opposite their names, respectively, and that each share was of the par value of $25,--giving a list of 168 defendants, with the number of shares by each set opposite to his name, and alleging, in effect, that certain clerks and servants named performed labor and services for said corporation, not exceeding six months in any one case, stating also the amount due therefor from the corporation to each; that such claims for labor and services thus due were, for valuable consideration, assigned to the various persons who appear as plaintiffs in this action; that no part thereof had been paid; that the plaintiffs ask that all persons having similar claims may be discovered, if any there be, and that their claims may be discovered, if any there be, and that the claims may be included in the amount adjudged due, and ordered paid into court by such stockholders for the benefit of such creditors of said corporation; that said corporation is wholly insolvent and destitute of property, and has no property or effects whatever, out of which a judgment in favor of the plaintiffs could be realized, or any part thereof; that the several claims of the plaintiffs for such services do not exceed six months' services in any one case, or six months' labor of any one individual, performed for said company; and prays that such stockholders be adjudged and decreed liable for the amount of the plaintiffs' demands, and all similar demands which may be set out and proven in this action, to a sum equal to the par value of the stock held by them as aforesaid, and that they be ordered to pay the same, or so much thereof as may be necessary to satisfy said claims and the costs of this suit, into court, for the persons so entitled; that subsequently, and on July 23, 1892, and upon an order to show cause based on an affidavit and the record, the court ordered that the name of Philip Birdie be, and the same was thereby, stricken from the title of the summons and amended complaint, as plaintiff therein; that February 4, 1893, the circuit judge of said court, upon an affidavit filed in the cause, from which it appeared that the several claimants, Foster, Roberts, Marks, Rossi, Vallance, Earle, Sola, and Bergl, not then parties to this action, had such interest in the subject-matter of the controversy as required them to be made parties plaintiff herein, for their due protection, and they, having claims similar to those of the plaintiffs herein, ought, in equity, to be made parties plaintiff herein, and allowed to prosecute their claims as such, it was ordered that each of them be, and they were thereby, made parties plaintiff in this action, and thereby allowed to prosecute their said claims in this same action as fully as though they were originally parties plaintiff herein, upon their serving their complaint setting forth their said claims according to law, together with a copy of said affidavit and said order, upon those defendants who have already appeared therein, or who might thereafter lawfully appear, in 60 days from the date thereof; that July 17, 1893, a copy of said order attached to the amended complaint in the action was served on such defendants; that September 24, 1893, the several defendants represented by Turner & Timlin, and the defendant Gile, represented by Silverthorn, Hurley, Ryan & Jones, upon affidavits and the records filed herein, moved the court to set aside the order of February 4, 1893, and for an order for judgment for costs against the plaintiff whose name was stricken out of the record by the order dated July 23, 1892. Whereupon, it was ordered by the court, October 4, 1893, that said motion be, and the same was thereby, denied, with five dollars costs of each motion. From that order the seven defendants mentioned bring this appeal.Turner & Timlin, for appellants.

R. Sleight, for respondents.

CASSODAY, J., (after stating the facts.)

The order of July 23, 1892, striking out the name of one of the paintiffs, was made by the court. Neither its validity nor its regularity is questioned. It is claimed that the defendants are entitled to a judgment for costs against the person whose name was so stricken out; but that is a matter which should have been determined, if at all, when the order of July 23, 1892, was made, and then embraced in that order. This is an equity case, and such matters must, necessarily, rest in the sound discretion of the trial court. Certainly, we should not disturb the order from which this appeal is taken merely because the order of July 23, 1892, failed to give such costs.

It is contended that the order made by the circuit judge, at chambers, February 4, 1893, adding new parties plaintiff, as mentioned in the foregoing statement, was without authority, and should have been set aside. The reason given for such contention is that sections 2610, 2611, 2830, Rev. St., only authorize the “court” to make such order, and that another section of the statutes provides that, wherever the “statutes authorize an order or proceeding to be made or taken by the court, it must be done by the court in session.” Sanb. & B. Ann. Rev. St. § 2815. The refusal of the court, by the order of October 4, 1893, to set aside that order, in effect,...