Gianella v. Bigelow

• Decision Date: 30 April 1897
• Citation: 71 N.W. 111,96 Wis. 185
• Parties: GIANELLA v. BIGELOW ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 185

71 N.W. 111

GIANELLA

v.BIGELOW ET AL.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Raphael Gianella against Frank G. Bigelow and others, executors, etc., of Charles J. Cary, deceased, and Hugh Ryan and another, executors, etc., of William Sanderson, deceased, and others, to establish stockholders' liability. Judgment for plaintiff, and appeals by executors of Cary and Sanderson. Affirmed in part and reversed in part.

This action was brought against the Plankinton Bank; William Plankinton and Anna B. Plankinton, trustees of the estate of John Plankinton, deceased; Frank G. Bigelow, H. A. J. Upham, and Caroline E. James, executors of the last will and testament of Charles J. Cary, deceased; Hugh Ryan and John B. Le Saulnier, executors of the last will and testament of William Sanderson, deceased; and others, stockholders in said bank,--by the plaintiff, for the benefit of himself and all other creditors of said bank, and all persons to whom it was indebted on the 1st day of June, 1893, at which time it made an assignment for the benefit of creditors to the defendant William Plankinton as assignee, and thereupon ceased to do business. The plaintiff alleged, among other things, that at the time of said assignment the Plankinton Bank was, and still is, indebted to him in the sum of $1,009.48, except that dividends to the amount of 30 per cent. have been paid by its assignee; that the capital stock of the bank was $200,000, and at the date of the assignment was held, in different amounts, by the various defendants named therein (among others, $5,000 by Frank G. Bigelow, H. A. J. Upham, and Caroline E. James, as executors of the last will and testament of Charles J. Cary, deceased, and $3,000 by Hugh Ryan and John B. Le Saulnier, as executors of the last will and testament of William Sanderson, deceased); that each of said stockholders is liable, in a sum equal to his aforesaid amount of stock, for the indebtedness of said bank, under the provisions of the general banking law, and that the action is brought to enforce such liability for the benefit of the creditors of said bank; that the assets remaining in the hands of the assignee are insufficient to pay its indebtedness in full, and that full payment of the liability of the stockholders, under the provisions of the banking law aforesaid, is required for the liquidation and payment in full of the indebtedness of the bank; that the assignee has paid dividends to the amount of 30 per cent. on such indebtedness, and the assets remaining in his hands are, to a large extent, of such a character that they cannot be immediately turned into cash, so that a long time will be required for the purpose of converting them, they consisting largely of real estate and real-estate securities; that the assignment of said bank, and all proceedings under the same, are under the supervision and control of the circuit court of Milwaukee county, and all the creditors of said bank are required to prove their claims in and under the direction of that court, and that all claims and demands against the bank have been proved and adjusted, and are now of record therein; that immediate payment of the liability by the stockholders of said bank was necessary, and should be required. The plaintiff prayed judgment that the said stockholders in said bank be required, each of them, forthwith to pay the amount of their respective liabilities as stockholders; that a receiver be appointed, authorized to collect and receive such payments, etc., and that he be authorized to make proof of claim for the same against the estates of Charles J. Cary, deceased, and of William Sanderson, deceased, if the amount due from such estates is not otherwise paid by the respective executors; that he might have such further order or judgment as might be just and proper to enforce the liability of said stockholders of said bank for the benefit of the creditors of the same; and that the moneys received and paid be distributed to them, upon their proofs of claims already filed; and for further and other relief. The defendants Frank G. Bigelow and others, as executors of Charles J. Cary, deceased, demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, that the court had no jurisdiction of the persons of the said defendants, and that the court had no jurisdiction of the subject of the action. The demurrer was stricken out, and the defendants answered, admitting and denying various allegations of the complaint, and setting up certain defensive matter thereto, the substance of which will appear in the finding of the court; and the defendants Hugh Ryan and John B. Le Saulnier, executors of Sanderson, answered, in substance, in like manner. The court at the trial found, among other things, the assignment of the Plankinton Bank to William Plankinton, as assignee, on the 1st of June, 1893, whereupon it ceased to do business, and that said assignee qualified and took charge of the assets of the bank; the indebtedness of the bank in $1,009.48, which had been reduced, by dividends paid to the plaintiff by the assignee and receiver appointed in the action, to 50 per cent. thereof; that the capital stock was $200,000, $96,000 whereof was held by Frederick T. Day, $5,000 thereof by the defendants Frank G. Bigelow, H. A. J. Upham, and Caroline E. James, as executors of the last will and testament of Charles J. Cary, deceased, and $3,000 thereof by Hugh Ryan and John B. Le Saulnier, as executors of the last will and testament of William Sanderson, deceased, and various sums by other parties; that seven of said stockholders (naming them and the amount of their respective holdings) had paid to the receiver the amounts of their respective liabilities as such stockholders; that the assignee of the bank, together with the receiver in the action, had paid dividends to the amount of 50 per cent. of the claims of creditors, and 50 per cent. of said claims still remained due; that the remaining assets of the bank, exclusive of the stockholders' liability, were of such a character that they cannot within a reasonable time be converted into money, but that a long time will be required therefor, and such assets are insufficient to pay the indebtedness of the bank and the claims of said creditors, in whole, within a reasonable time; that, while it was possible that such assets might be sufficient ultimately for that purpose, it was not probable, and the payment in full of the liability of the stockholders, under the provisions of the banking law, is required for the liquidation and payment in full of the indebtedness of the bank. It was further found that Charles J. Cary died testate, March 1, 1892, leaving a last will and testament naming Frank G. Bigelow, H. A. J. Upham, and Caroline E. James his executors, and owning at the time of his death 50 shares of the capital stock of said bank, of the par value of $5,000. standing in his name on the books of the bank; the issuance of letters testamentary to them by the county court of Milwaukee county on May 9, 1892, and that said executors, as such, are the holders and owners of the said capital stock; that they have never received any dividend thereon, nor voted or done any other act as such holders, except to inventory the same and cause it to be appraised; that on the 9th of May, 1892, the county court of Milwaukee county made an order, in the matter of the settlement of said estate, pursuant to the statute, requiring creditors of said Cary to present their claims against him for examination and allowance on or before the first Tuesday of December, 1892, which time was allowed and limited for that purpose, and notice of the time and place at which such claims and demands would be received, examined, and adjusted, and that the notice of the time limited thereby for creditors to present their claims was duly given as provided by law, and on the 16th day of October, 1894, said county court rendered its final decision on all claims presented, and that no claim on behalf of the Plankinton Bank, or any of the creditors of said bank, or any other person, against said Charles J. Cary, on account of any liability by him as a stockholder of said bank, or otherwise, for its indebtedness, or any part thereof, was ever presented to said court or filed therein. And it was found, in like manner, that a like order in the matter of the estate of William Sanderson, deceased, who died in February, 1893, testate, was made by said county court on the 8th of March, 1893, requiring all creditors to present their claims and demands against said William Sanderson, for examination and allowance, on or before the first Tuesday of October, which was duly published, and that no claim, contingent or otherwise, had ever been filed against said estate by the plaintiff, or any other creditor of the Plankinton Bank, based upon any alleged liability of said deceased, as a stockholder therein; that said Ryan and Le Saulnier had duly qualified as executors, and entered upon the discharge of the trust, and ever since, as such executors, have been the owners of said 30 shares of the capital stock of the Plankinton Bank; that there was due and owing to the plaintiff and other creditors of the bank, from certain stockholders named, by virtue of, and under the provisions of, the banking act, the sums stated: From said Bigelow and others, executors of the last will and testament of Charles J. Cary, deceased, $5,000; from Hugh Ryan and John B. Le Saulnier, executors of William Sanderson, deceased, $3,000,--with interest on said several amounts from the 4th of December, 1894, and the costs of the action; and, as conclusions of law, that the plaintiff was entitled to the relief demanded in the complaint, in accordance with said findings. And it was adjudged, among other things,...