Dietrich v. Loney's Estate

• Decision Date: 29 April 1919
• Citation: 172 N.W. 229,169 Wis. 469
• Parties: DIETRICH ET AL. v. LONEY'S ESTATE ET AL.
• Court: Wisconsin Supreme Court

169 Wis. 469

172 N.W. 229

DIETRICH ET AL.

v.LONEY'S ESTATE ET AL.^a1

Supreme Court of Wisconsin.

April 29, 1919.

Appeal from Circuit Court, Douglas County; Frank A. Ross, Judge.

Action by G. E. Dietrich and another as executors, etc., against the Estate of B. S. Loney and another, as executors, etc. From judgment awarding insufficient relief, plaintiffs appeal. Reversed, with directions.

In 1895 the Douglas County Bank, a Wisconsin banking corporation at Superior, made an assignment for the benefit of its creditors. It was then indebted over $135,000, and with assets not to exceed $20,000. One H. P. Booth was a creditor, and filed his claim, amounting to $713.86, therein, but received no dividend. In August, 1895, said Booth commenced an action in the superior court of Douglas county under section 3223, Stats., on behalf of himself and other creditors of the bank against the stockholders of said bank, to enforce their liability under the provisions of what is now section 2024--44, and which at that time, under section 47, chapter 479, of the Laws of 1852, read as follows:

“The stockholders in every corporation or association organized under the provisions of this act [regulating banking], shall be individually responsible to the amount of their respective share or shares of stock, for all its indebtedness and liabilities of every kind.”

The city of Superior and other creditors intervened and were made plaintiffs.

On January 27, 1900, judgment was duly entered in such action, fixing the amounts due the respective plaintiffs as follows:

+----------------------------+
                ¦H. P. Booth      ¦$ 1,040 07¦
                +-----------------+----------¦
                ¦City of Superior ¦26,780 30 ¦
                +-----------------+----------¦
                ¦Haven & Haven    ¦479 90    ¦
                +-----------------+----------¦
                ¦Nettie Swenson   ¦405 26    ¦
                +-----------------+----------¦
                ¦                 ¦$28,705 53¦
                +----------------------------+
                

It further fixed the liability of the several stockholders made parties defendant at the amount of their respective stock holdings, in a sum aggregating $29,500, exclusive of costs. In March, 1901, execution was issued against all of the defendants, and on April 15, 1901, returned unsatisfied.

In October, 1909, there was paid to said Booth the sum of $1,172.95 out of the sum of $1,630 which was realized on said judgment from the estate of one of the defendants, R. B. Dear, such sum being divided between Booth and one of the other intervening plaintiffs. That after the application of said sum and computing interest on the balance the amount due said Booth on October 25, 1917, amounted to $606.64. No other payments than those specified were made to any of the plaintiffs in said action.

Prior to October 25, 1917, B. S. Loney, one of the defendants in said action whose liability had been adjudged at the time of the entry thereof at the sum of $1,000, died, and his estate was probated in Douglas county.

Upon notice therefor given to the executrix of the will of said deceased, Loney, said Booth applied to the superior court for Douglas county for leave to file his claim for $606.64 against the said estate. No appearance was made in response to said application on behalf of the Loney estate, and leave was thereupon granted by said superior court to so file the claim, which was thereupon done by Booth. The time for filing claims in the Loney...