Fulton v. First Volunteer Co. of Oconto

• Decision Date: 07 April 1931
• Parties: FULTON ET AL. v. FIRST VOLUNTEER CO. OF OCONTO ET AL.
• Court: Wisconsin Supreme Court

204 Wis. 355

236 N.W. 120

FULTON ET AL.

v.FIRST VOLUNTEER CO. OF OCONTO ET AL.

Supreme Court of Wisconsin.

April 7, 1931.

Appeal from an order of the Circuit Court for Oconto County; A. F. Murphy, Judge. Affirmed.

Action by A. G. Fulton and others against the First Volunteer Company of Oconto, the State Annuity Soldiers Rehabilitation Board, for which the State Annuity and Investment Board was substituted as a party defendant, and others, in which certain defendants filed cross-complaints. From an order overruling substituted defendant's demurrer to the complaint and cross-complaints, it appeals.--[By Editorial Staff.]

Affirmed, and cause remanded, with directions.

Action begun in September 1929; order overruling demurrer entered in March 1930.

The plaintiffs and lien claimants began this action to foreclose certain lien claims for labor performed and material furnished in the construction of the building on premises owned by the defendant the First Volunteer Company of Oconto, a corporation, and in the complaint allege the facts showing the existence and business of the plaintiffs, and the incorporation and existence by virtue of the laws of the state of Wisconsin of the defendant First Volunteer Company of Oconto, having as its object to build and maintain an armory in the city of Oconto and to maintain a military company, and it is alleged that the state annuity and investment board is created by virtue of the laws of the state of Wisconsin under chapter 491 of the Laws of 1929, and the substitution thereof as a party defendant for “soldiers rehabilitation board”; that the said state annuity and investment board is vested and has exclusive control and investment of the soldiers rehabilitation fund.

There are allegations showing the other lien claimants and the amount of their claims; a description of the property owned by the defendant corporation, and that, in pursuance of certain contracts entered into by the lien claimants with the defendant corporation, services were rendered and materials furnished up to and including the amount set forth in said complaint; that the defendant corporation was and still is the owner in fee of the premises described which are situated within the incorporated city of Oconto and do not exceed one acre in extent.

Said complaint sets forth the last date upon which work and labor and the furnishing of material was performed by each of the claimants; that the proper notices were duly given, and that the claims for liens in each instance were duly filed in the office of the clerk of the circuit court of Oconto county within six months from the time of the doing of such work and the furnishing of such material, and contained a statement of the contract, the demand on which it was founded, and the name of the corporation from whom the demand is claimed, the name of the claimant, the last date of the performance of the labor or furnishing of materials, a description of the property affected thereby, a statement of the amount claimed, and all other material facts in relation thereto; that one year had not elapsed at the time of the beginning of the action after the doing of said work and the exact amounts due on each claim; that the state annuity and investment board has, or claims to have, some interest in or lien upon said premises by virtue of a certain mortgage given to it by the defendant corporation and recorded in the office of the register of deeds for Oconto county on December 31, 1927, in volume 94 of Mortgages, p. 169; that the actual construction of the building on the premises in question was commenced prior to the giving and recording of the mortgage herein referred to, which interest or lien, if any, is subsequent and subject to the liens of the lien claimants; that the defendant E. A. Watterich, as trustee for the second mortgage bondholders of the corporation defendant, has, or claims to have, some interest in or lien on the premises described by virtue of being trustee for the second mortgage bondholders of the First Volunteer Company of Oconto; that the actual construction of the building on the premises was commenced prior to the execution and sale of the bonds; that the defendant Irwin Schoenebeck is the commanding officer of Company C, 127th Infantry, Wisconsin National Guard, and claims to have some interest by virtue of a certain lease entered into as such officer with the corporation defendant, but that the lease was entered into subsequent to the time when the construction of the building was commenced; that the defendant Charles F. Johns also claims an interest by virtue of a lease entered into with the corporation defendant, but that the actual construction of the building was commenced before the making of said lease.

And, upon the facts stated, the plaintiffs demand judgment that the demands of all persons having filed claims for liens upon the premises aforesaid be ascertained and adjudged, and that the interest of the First Volunteer Company of Oconto, the corporation owning said premises at the time of the commencement of the work and the furnishing of materials aforesaid, or the interests therein which the said First Volunteer Company of Oconto, or any person claiming under it, has since acquired, be sold to satisfy the amount of the liens so ascertained and adjudged, with the costs of this action, and that, in case of deficiency arising upon such sale, then that, upon confirmation thereof, the plaintiffs recover judgment for such deficiency against the defendant First Volunteer Company of Oconto, and have execution therefor, and for such other relief as may be just and equitable.

There were answers and cross-complaints by lien claimants and a demurrer by the state annuity and investment board to the complaint on the ground that it appears upon the face thereof that the same does not state facts sufficient to constitute a cause of action, and a similar demurrer to the cross-complaints of other lien claimants. This demurrer was overruled, and from the order overruling the demurrer this appeal is taken.

John W. Reynolds, Atty. Gen., H. A. Minahan, Dep...