McGovern v. Kraus
| Decision Date | 05 April 1927 |
| Citation | 213 N.W. 334,192 Wis. 564 |
| Parties | MCGOVERN v. KRAUS ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Vernon County; R. S. Cowie, Judge.
Action by Edward McGovern as trustee of the estate of Fred Kraus, bankrupt, against Fred Kraus and others. From order sustaining demurrers to the complaint, plaintiff appeals. Affirmed.--[By Editorial Staff.]Grady, Farnsworth & Walker, of Portage, for appellant.
Kopp & Brunckhorst, of Platteville, for respondents.
This case involves the same complaint considered in the same-entitled case (213 N. W. 332), decided herewith in an opinion by Mr. Justice Doerfler. Here there is a demurrer by the respondents Kraus to the second and third causes of action sought to be stated in the complaint against said defendants. The circuit court entered an order sustaining the demurrers, and plaintiff appeals.
[1] The question presented is whether or not the respondents Kraus have an interest in the second cause of action sufficient to constitute them necessary or proper parties defendant therein. As to the third alleged cause of action we have held in the companion case cited that no cause of action was stated, and that disposes of that contention. Also we have held in the companion case cited that the plaintiff, as trustee in bankruptcy, succeeded to all the rights of the defendants Kraus. It follows that the defendants Kraus, having no interest in the property, have no interest in the causes of action. No relief is demanded in the two causes of action against such defendants.
[2] It is contended by the appellant that the defendants Kraus are proper parties, though not necessary parties, for two reasons: First, that, if plaintiff prevails, the estate of the trustee may be so enhanced as to make possible a residuum for the bankrupt after payment of all creditors; and, second, that the plaintiff has the right to make the Krauses parties in order to secure to the trustee the right of adverse examination of them. These contentions are inconsistent. As to the first contention, it should be said that the trustee represents both the creditors and the bankrupt in conserving the estate, and on the second contention it is inconsistent to claim any interest in the estate by the Krauses and at the same time to charge that they are adverse parties to the action.
On the second contention of appellant reliance is had on Ryan v. Olson, 183 Wis. 290, 197 N. W. 727. An examination of that case reveals...
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... ... They assert that sec. 288.02 gives private persons the authority to bring such actions on behalf of the state ... In McGovern v. Eckhart, 192 Wis. 558, 213 N.W. 332 (1927), this court construed secs. 288.01 and 288.02, Stats., and concluded that the right to proceed in a ... ...
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