McKinnon v. Wolfenden

• Decision Date: 16 December 1890
• Citation: 47 N.W. 436,78 Wis. 237
• Parties: MCKINNON ET AL. v. WOLFENDEN ET AL.
• Court: Wisconsin Supreme Court

78 Wis. 237

47 N.W. 436

MCKINNON ET AL.

v.WOLFENDEN ET AL.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Juneau county.

This action is in the nature of a creditors' suit brought by plaintiffs against the Case Wagon Company, an insolvent corporation, which was a judgment debtor of plaintiffs. When it was commenced, all the available assets of the corporation were in the possession of the Reedsburg Bank, (one of the defendants,) as mortgagee and pledgee thereof. Afterwards, by permission of the court, the defendants William Case and Manning H. Case, who were sureties for the corporation on its indebtedness to the bank, redeemed the property so held by the bank, took possession of it, and were subrogated to the rights of the bank. April 26, 1887, a referee was appointed to ascertain and report the amount due the Cases from the corporation on the mortgages under which they held the property. July 12, 1887, the referee reported the amount so due at $8,540.57. This report was confirmed by the court July 19, 1887, by an order to that effect duly entered. It does not appear that a copy of the order confirming such report and notice of the entry thereof was served upon any of the parties. In the mean time a large number of creditors of the insolvent corporation had been made parties to the action at their own request. On an application of three of these creditors, and one Charles E. Wolfenden, (who was not a party, but who claimed as assignee of a creditor who was a party,) an order was made and entered December 17, 1887, granting leave to the petitioners, and any other creditors, to redeem the assets of the insol vent corporation by paying to the Cases the amount due on their mortgages, and appointing said Wolfenden as receiver of the property when such redemption should be made. Thereupon, on January 9, 1888, such petitioners redeemed the property, and were subrogated to the rights of the Cases, and the property went into the hands of the receiver pursuant to such order. January 23, 1888, the court, by order, granted the petition of certain other creditors of the corporation, making them also parties to the action. Among these are the appellants in this action, the defendants Nieschultz, Wolfenden, and Lee, who appeal from the order of July 19th, confirming the report of the referee of the amount due the Cases on their mortgages. Wolfenden also joins in the appeal as such receiver.Pinney & Sanborn, for appellants.

G. Stevens, R. P. Perry, and E. C. Higbee, for respondents.

LYON, J., ( after stating the facts as above.)

The respondents move to dismiss the appeal. The motion must be granted. Wolfenden's appeal as receiver was not authorized by the court. Without such authority it was not competent for him to take the appeal. A receiver is the mere servant or agent of the court to do its bidding, and he cannot be heard to question by appeal the regularity or propriety of the orders of court in the action,...