Meyers v. Rahte

• Citation: 1 N.W. 353,46 Wis. 655
• Parties: MEYERS and others v. RAHTE and husband
• Decision Date: 24 May 1879
• Court: Wisconsin Supreme Court

1 N.W. 353

46 Wis. 655

MEYERS and others v. RAHTE and husband

Supreme Court of Wisconsin

May 24, 1879

APPEAL from the Circuit Court for Fond du Lac County.

This action is brought in equity by the members of the firm of Samuel Meyers & Co., in behalf of themselves and other general and unsecured creditors of Mrs. Henrietta K. Rahte "who shall by proper proceedings come into court and pray the benefit of the action, and show themselves equitably entitled thereto," to enforce payment of their several demands against her out of her separate estate.

It is alleged in the complaint, that the plaintiffs are partners and the defendants are husband and wife; that Mrs. Rahte inherited and received real and personal property from the estate of her deceased father; that for two years last past she has carried on the business of a retail liquor dealer and saloon keeper, as a sole trader on her own account, with the capital and on the credit of her sole and separate property so inherited by her; "that such business has been carried on in her own name, and for her individual benefit with the consent, approval, assistance and agency of her said husband, Henry Rahte, Jr., who has managed said business for her as her principal agent, and had entire charge of the active conduct thereof, but solely in her name and with her funds; and that said Henrietta K. Rahte has received, to her own use and as her own property, all the profits of said business, has bought stock and incurred and paid debts in the course of the business, and in every way has subjected herself to and recognized the usual liabilities, and enjoyed the usual privileges and benefits, of a person engaged in such or any business, the same as if she were an unmarried woman trading on her sole and separate account; and still so does as such trader." It is further averred, that, in carrying on such business and making purchases on account thereof, she has become indebted to divers persons, including the plaintiffs; and that none of her creditors are secured by specific lien on her separate estate.

The complaint then proceeds to state that Mrs. Rahte is indebted to the plaintiffs over $ 600 for liquors sold and delivered by them to her, and used by her in such business; and alleges that certain of the real estate so inherited by her is all that remains of her separate estate. The prayer for relief is, that the demands of the plaintiffs, and of all other creditors of Mrs. Rahte who shall be admitted to the benefits of the action, be adjudged a specific lien on such real estate; that the same be sold to satisfy such demands; and for general relief.

Afterwards, and before any other proceedings in the action, the firm of A. Heller & Bro. presented their petition to the circuit court, praying to be admitted to the benefits of the action of Meyers & Co. It is alleged in the petition that A. Heller & Bro. are also creditors of Mrs. Rahte for the price of other liquors sold to her by them, and used by her in her said business. Most of the material averments of the original complaint are repeated in the petition. The court granted the prayer of the petitioners, and ordered the defendants to answer the petition. The defendants thereupon demurred thereto, on the grounds, first, that several causes of action are improperly united; and, secondly, that the complaint fails to state a cause of action. This appeal is from an order overruling the demurrer.

Counsel for the respective parties signed and filed in this court a stipulation that, with the consent of the court, the original complaint and the petition, "taken together, shall constitute the complaint; that the demurrer be considered a demurrer to the whole complaint so constituted, and the case shall not go off upon the technical point that the petition is not a complaint to which a demurrer will lie; the intention being to present the case squarely on the question whether the action was originally properly brought in equity by one creditor in behalf of himself and all others similarly situated, instead of at law by each creditor separately."

Order reversed, and cause remanded.

For the...