Stoltz v. Milwaukee & L. W. R. Co.

• Decision Date: 26 September 1899
• Citation: 104 Wis. 47,80 N.W. 68
• Court: Wisconsin Supreme Court
• Parties: STOLTZ ET AL. v. MILWAUKEE & L. W. R. CO. ET AL.

104 Wis. 47

80 N.W. 68

STOLTZ ET AL.

v.MILWAUKEE & L. W. R. CO. ET AL.

Supreme Court of Wisconsin.

Sept. 26, 1899.

Appeal from circuit court, Manitowoc county; Michael Kirwan, Judge.

Action by Henry Stoltz, Sr., and Johanna Stoltz, his wife, against the Manitowoc & Western Railroad Company, the Milwaukee & Lake Winnebago Railroad Company, Howard Morris and Henry F. Whitcomb, as receivers of the Wisconsin Central Railroad Company, and also as receivers of the Wisconsin Central Company, and Adolph Piening. From an order overruling a demurrer by the Milwaukee & Lake Winnebago Railroad Company and Henry F. Whitcomb and Howard Morris, as receivers of the Wisconsin Central Railroad Company and of the Wisconsin Central Company, these defendants appeal. Affirmed.T. H. Gill and Howard Morris, for appellants.

Timlin, Glicksman & Conway and G. G. & C. H. Sedgwick, for respondents.

CASSODAY, C. J.

This is an appeal from an order overruling a demurrer interposed by the defendants the Milwaukee & Lake Winnebago Railroad Company, and Henry F. Whitcomb and Howard Morris, as receivers of the Wisconsin Central Railroad Company and the Wisconsin Central Company, to a complaint alleging, in effect, that prior to July 13, 1895, the plaintiffs were, and ever since have been, the owners of the lands described, together with all the houses, buildings, and improvements thereon; that the same constituted their homestead; that August 6, 1895, the defendant the Manitowoc Terminal Company instituted proceedings in the circuit court for the condemnation of the right of way, depot grounds, and terminals for that company; that such proceedings were had therein that commissioners were duly appointed in such condemnation proceedings at the instance of that company, and that they made and filed their award in writing, wherein and whereby they fixed the amount of compensation to be made to the plaintiffs, and to the defendant Adolph Piening and the city of Manitowoc for the taking of the premises described for the purposes of such railway at $1,766; that such award of the commissioners was grossly inadequate; that within 30 days from the filing of the same the plaintiffs therein and the Manitowoc Terminal Company each appealed from such award to the circuit court of Manitowoc county; that Adolph Piening never had any interest in such tract of land or in the award, and that the city had no interest in the award, and on May 15, 1896, executed and delivered to the plaintiff Henry Stoltz a transfer and conveyance of all its right, title, and claim of any damage or claim for damage against the Manitowoc Terminal Company, or its successors or assigns, on account of the construction to be made, and in and to the lands described; that immediately after the filing of the award that company paid the amount of such award--that is to say, $1,766--to the clerk of the circuit court, and without the consent of the plaintiffs, or either of them, entered upon the land so condemned, and excavated the right of way to a depth of about 30 feet at the deepest place, and laid a railroad track thereon, and greatly damaged the adjacent lands of the plaintiffs not actually taken, and rendered worthless the lands for gardening purposes, and the improvements thereupon adapted for such purposes, and rendered inaccessible by the private road or any other convenient way the residence of the plaintiffs, and also the land between the right of way of the Chicago & Northwestern Railway Company and the right of way so taken and excavated; that the plaintiffs never in any way ratified or approved of the payment of $1,766, and never accepted of the same, or any part thereof, but at all times forbade the terminal company from entering upon the land, or the use of the same, or the excavation thereon, but the Manitowoc Terminal Company wrongfully and without authority of law, notwithstanding the pendency of such appeals, entered upon and took possession of the lands of the plaintiffs, and excavated thereon, and damaged the same, as aforesaid, unlawfully and wrongfully, and without the consent or permission of the plaintiffs; that May 23, 1896, said two appeals were consolidated into one action; that February 8, 1897, the venue was changed to Brown county; that the cause was tried in March, 1897, and such proceedings were had that the jury returned a verdict in favor of the plaintiffs and against the Manitowoc Terminal Company for $9,000, and that April 10, 1897, judgment was duly given and entered upon such verdict in favor of the plaintiffs and against the Manitowoc Terminal Company for $9,336.29 damages and costs; that December 4, 1897, the Manitowoc Terminal Company appealed from that judgment to this court without giving any undertaking thereon except an undertaking of $250, for the payment of costs in this court; that June 23, 1898, this court affirmed such judgment (100 Wis. 208, 75 N. W. 987), and thereafter the record was duly remitted to the circuit court of that county; that July 1, 1897, a transcript of such judgment was duly docketed in the circuit court of Manitowoc county; that thereupon, and on July 1, 1897, an execution upon such judgment was duly issued, and delivered to the sheriff of Manitowoc county, in which was the principal office and place of business of the Manitowoc Terminal Company at all times when it had an office or place of business, and that the sheriff was unable to find any goods, chattels, or property of any kind belonging to the Manitowoc Terminal Company, and so returned such execution wholly unsatisfied; that thereafter, upon petition of the plaintiffs therein, an order was made by the circuit court of Brown county, under section 3216, Rev. St., sequestrating the stock, property, and things in action of the Manitowoc Terminal Company, and appointing Otto A. Finck, of Milwaukee, receiver of the same, and that he thereupon qualified as such receiver according to law, and as such proceeded in the execution of his duties and trust as such receiver, and demanded the books and papers of the Manitowoc Terminal Company, and received the same, and thereupon for the first time the plaintiffs became aware that the Manitowoc Terminal Company was at all times therein mentioned wholly insolvent, and that no part of its capital stock had ever been paid in, and that it had no property of any kind except the subscriptions to its capital stock, and that such subscriptions, to the amount of $500, were made by five persons, who subscribed one share each, and purported to pay for the same by services in organizing such corporation, and that the remainder of its capital stock, to the amount of $95,000, was, as claimed by the Manitowoc Terminal Company, to have been subscribed for, taken up, or delivered to the defendant the Milwaukee & Lake Winnebago Railroad Company, but the latter company denied that it had subscribed for such stock, or any part thereof; that the defendants the Manitowoc Terminal Company, the Manitowoc & Western Railroad Company, and the Milwaukee & Lake Winnebago Railroad Company are, and at all times therein mentioned were, wholly insolvent; that, after the Manitowoc Terminal Company entered upon such lands, the plaintiffs demanded of that company to make, erect, furnish, or construct for the plaintiffs a suitable and convenient farm crossing over its road, and connecting the two adjoining pieces of lands of the plaintiffs, separated by such road, but that it failed, neglected, and refused to do so; that the defendants the Manitowoc Terminal Company, the Manitowoc & Western Railroad Company, and the Milwaukee & Lake Winnebago Railroad Company were each duly incorporated as railroads under the laws of Wisconsin; that the defendants Henry F. Whitcomb and Howard Morris were receivers of the property, credits, and effects of the Wisconsin Central Railroad Company, incorporated under the laws of Wisconsin, duly appointed by the United States circuit court, September 27, 1893, in an action of John A. Stewart and Edwin H. Abbot, as trustees, against the Wisconsin Central Railroad Company, and were also thereafter duly appointed receivers of the Wisconsin Central Company, and duly qualified as...