Gilmer v. Suring Mfg. Co.

• Decision Date: 08 November 1927
• Citation: 215 N.W. 827,194 Wis. 107
• Parties: GILMER v. SURING MFG. CO. ET AL.
• Court: Wisconsin Supreme Court

194 Wis. 107

215 N.W. 827

GILMER

v.SURING MFG. CO. ET AL.

Supreme Court of Wisconsin.

Nov. 8, 1927.

Appeal from a Judgment of the Circuit Court for Oconto County; W. B. Quinlan, Circuit Judge.

Action by C. W. Gilmer against the Suring Manfacturing Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.--[By Editorial Staff].

The respective demurrers of the defendants Wilcox and Kubiak to the complaint were sustained below.

The complaint alleges the organization of the defendant Suring Manufacturing Company in February, 1921; that defendants Wilcox and Kubiak each subscribed for 50 shares of the par value of $100, each paying to the company, however, on such respective $5,000 subscriptions, but $2,500; that, between January and May, 1922, and after such subscriptions, the plaintiff sold logs to the company, amounting to the sum of $1,591.76, upon which nothing has been paid; that thereafter, upon due proceedings had, the company was declared bankrupt, and the defendant McComb appointed and qualified as trustee; that there are no assets out of which to pay any judgment the plaintiff may obtain, outside of the alleged liability of Wilcox and Kubiak for the unpaid balance of their subscriptions, and that the corporation is wholly insolvent; that the defendant trustee has made no effort, and does not contemplate taking any action to enforce such alleged liability, and is not willing to go to any expense to recover the same, inasmuch as none of the creditors have advanced any money therefor after his request in that regard; that the trustee is opposed to employing attorneys to bring an action upon any contingent fee arrangement, and that the estate of the bankrupt has no funds wherewith to pay such expense; that the plaintiff here has filed his claim for the amount stated above; that it has been duly allowed in said proceedings but nothing paid thereon; that plaintiff brings this action for the purpose of compelling the two defendants to pay the amount due on their subscriptions, as required by section 286.21, Stats.

Apparently there was no appearance for the defendant company or the trustee. Leave was granted to plaintiff to amend; such not being done, judgment was thereafter entered dismissing the complaint, with costs. Plaintiff appeals.Winter & Winter, of Shawano, for appellant.

W. B. Surplice and John J. Colignon, both of Green Bay (Robert A. Kaftan, of Green Bay, of counsel), for respondents.

ESCHWEILER, J.

[1] The plaintiff here filed a claim for an unsecured contract obligation, not reduced to judgment, in bankruptcy proceedings in the federal court. In and by such bankruptcy preceedings all the assets, including the claim sought to be maintained by the plaintiff here, became subject to the primary and exclusive jurisdiction of the federal court until at least in some manner such assets, or some part thereof, had been renounced. Having therefore submitted his own claim to the jurisdiction of such federal court and the right to pursue and collect all possible assets of the bankrupt company being by law now in the same federal court, it is to that court that application must be first made, and relief exhausted or denied before the state courts can or should entertain jurisdiction of such matters.

[2] That the trustee in such bankruptcy proceedings succeeds to all the rights of the bankrupt as to its assets including claims such as this cannot be questioned. McGovern v. Eckhart, 192 Wis. 558, 561, 213 N. W. 332;McGovern v. Kraus, 192 Wis. 564, 565, 213 N. W. 334;Miley v. Heaney, 168 Wis. 58, 90, 169 N. W. 64.

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