Hillmer v. Grondahl

• Decision Date: 03 May 1938
• Docket Number: No. 110.,110.
• Citation: 199 A. 255
• Court: Vermont Supreme Court
• Parties: HILLMER v. GRONDAHL.

199 A. 255

HILLMER

v. GRONDAHL.

No. 110.

Supreme Court of Vermont. Bennington.

May 3, 1938.

Appeal in Chancery, Bennington County; Allen R. Sturtevant, Chancellor.

Suit by Armin F. Hillmer against E. L. Grondahl to enforce defendant's double liability as a stockholder of an Illinois bank. From a decree dismissing the bill on demurrer, plaintiff appeals.

Affirmed, and remanded.

Lawrence & O'Brien, of Rutland, and Leonard & Leonard, of Chicago, Ill. (Gordon McLeish Leonard, of Chicago, Ill., of counsel), for plaintiff. Fenton, Wing & Morse and John A. M. Hinsman, all of Rutland, for defendant.

Argued before POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

POWERS, Chief Justice.

This is a chancery suit wherein the plaintiff, a nonresident creditor of the insolvent Chicago Bank of Commerce, chartered and domiciled in the state of Illinois, seeks to enforce for his own benefit and that of his fellow creditors, against the defendant, as a resident stockholder of that bank, a so-called double liability under the Constitution and laws of such foreign state. The bill was demurred to, the demurrer was sustained, the bill was dismissed, and the plaintiff appealed.

So, the only question presented is one of pleading. Many causes of demurrer are assigned, but the real question is this: Are the allegations, in the aggregate, sufficient to state a cause of action enforceable in a court of equity in this state?

We agree with the defendant when he says that it is only by the allegations of fact contained in the bill that its sufficiency is to be determined, Murtey v. Allen, 71 Vt. 377, 380, 45 A. 752, 76 Am.St.Rep. 779; allegations amounting to conclusions of law are not admitted by the demurrer and are to be disregarded, Holman v. Randolph Nat. Bank, 98 Vt. 66, 74, 126 A. 500; and no fact can be considered unless it appears on the face of the bill, Vermont Hydro-Electric Corporation v. Dunn, 95 Vt. 144, 152, 112 A. 223, 12 A.L.R. 1495.

We also agree with him when he says that the allegations in paragraph 12 of the amended bill, as to what the law of Illinois is, are mere conclusions of law, and not allegations of facts. When, as here, a suit is based upon the laws of another state which are relied upon as conferring the cause of action, they must be alleged and proved. They must be alleged as facts and proved as facts. Pickering v. Fisk, 6 Vt. 102, 105; Ward & Co. v. Morrison, 25 Vt. 593, 601; Jenness v. Simpson, 81 Vt. 109, 111, 69 A. 646, 130 Am.St.Rep. 1029; Wellman v. Mead, 93 Vt. 322, 323, 337, 107 A. 396; Grow v. Washburn, 95 Vt. 370, 373, 115 A. 226. This is so whether the proof of such laws is addressed to the court or to the jury. Where reliance is placed upon constitutional provisions, statutory provisions, or court decisions, they must be so specifically set out in the bill or declaration that the court can see that the plaintiff has a right of action there under. If they are not so set out, and as here the foreign law is the affirmation of the pleader, they are only his conclusions of law and go for naught. In the Jenness Case, it was expressly held that averments like those under discussion were insufficient.

Being only conclusions of law, they...