Parker v. Stoughton Mill Co.

• Decision Date: 22 October 1895
• Citation: 91 Wis. 174,64 N.W. 751
• Parties: PARKER v. STOUGHTON MILL CO.
• Court: Wisconsin Supreme Court

91 Wis. 174

64 N.W. 751

PARKER

v.STOUGHTON MILL CO.

Supreme Court of Wisconsin.

Oct. 22, 1895.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Thomas Parker, Jr., as receiver of the Mutual Fire Insurance Company of Chicago, against the Stoughton Mill Company, to recover an assessment on premium notes. From an order dismissing the action, plaintiff appeals. Reversed.

This is a suit brought by Thomas Parker, Jr., as receiver of the Mutual Fire Insurance Company of Chicago, against the Stoughton Mill Company, to recover an assessment made upon the said Stoughton Mill Company as a member of said Mutual Fire Insurance Company, the said assessment being based upon two certain premium notes made by the said Stoughton Mill Company to the said Mutual Fire Insurance Company, prior to the appointment of the receiver.

Two separate causes of action are set forth in the complaint, one upon each of the said premium notes. The material facts set forth in the complaint are: That the said Mutual Fire Insurance Company of Chicago was a corporation duly organized under the laws of the state of Illinois, and that the Stoughton Mill Company is a corporation organized under the laws of the state of Wisconsin; that on the 7th day of January, 1886, the firm of Dow, Townsend & Co. became members of said insurance company, and upon execution by them of a certain premium note a certain policy of insurance was issued to them by said insurance company; that subsequently said firm of Dow, Townsend & Co. assigned all their interest in the said policy of insurance to the defendant, the Stoughton Mill Company, and thereupon said Stoughton Mill Company became a member of said Mutual Fire Insurance Company, and executed and delivered to the said insurance company its certain premium note, which is set out in full; that afterwards, and on or about the 1st day of October, 1890, Charles W. Pavey, auditor of public accounts for the state of Illinois, in pursuance of chapter 73 of the Revised Statutes of said state, caused an examination to be made of the affairs of said Mutual Fire Insurance Company, and as a result of such examination, and in pursuance of the provisions of said chapter 73 of the Revised Statutes of said state of Illinois, said auditor subsequently, and on the 12th day of November, 1890, filed his petition in the circuit court of Cook county, Ill., which is a court of record and of general jurisdiction, for the purpose of winding up the said company, and appointing a receiver to take charge of its assets; that the said insurance company and its officers and directors were made parties to the said petition, were duly served with process, and appeared in court, and filed their answers, and afterwards, and on or about the 21st day of February, 1891, such further proceedings were had in said cause that the plaintiff herein, Thomas Parker, Jr., was duly appointed receiver of the said insurance company; that under and by virtue of the provisions of the said chapter 73 of the General Statutes of the state of Illinois, and of his said appointment as receiver of said company, the plaintiff had power to prosecute and defend suits in the name of the corporation or in his own name, etc., and by reason thereof was vested with authority to bring and maintain this suit; that subsequently such further proceedings were had in said cause that, upon a hearing thereof, and in accordance with the provisions of said chapter 73 of the said statutes of Illinois, a decree was therein entered, levying an assessment of 65 per cent. upon the premium note and membership liability of all the members of said company, and fixing the assessment against the Stoughton Mill Company, upon the premium note hereinbefore referred to, at the sum of $435.10; that it was provided in said decree that, if any of the members of the said company failed or refused to pay the 65 per cent. assessment within 30 days after notice thereof, the said receiver should proceed to collect the full amount of the liability of such member; that due notice of such assessment had been given to the said Stoughton Mill Company, but that it had refused to pay the same, notwithstanding more than 30 days had elapsed since the giving of the said notice, and therefore the receiver was entitled to recover on said premium note, in accordance with the provisions of said decree, the sum of $669.38.

The second cause of action set out in the complaint sets out a certain other premium note, and contains substantially the same allegations contained in the first cause of action, and, in addition thereto, the allegation that the said note, on the 14th day of March, 1890, and prior to the appointment of the plaintiff as receiver of said company, had expired by its terms, and had been returned to the defendant, but that at the time of such return or surrender the defendant had not paid any of the liability which had accrued thereon prior to the expiration of said note. The amount which the plaintiff sought to recover upon the second note is the sum of $172.37.

The defendant interposed a demurrer to the complaint for the reason that it appears upon the face thereof--First, that the plaintiff had not legal capacity to sue, being only an officer of a court in a foreign jurisdiction; second, that the first count of the complaint did not state facts sufficient to constitute a...