Thomsen v. Cullen
| Decision Date | 08 May 1928 |
| Parties | THOMSEN ET AL. v. CULLEN ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Circuit Court of Milwaukee County; E. T. Fairchild, Circuit Judge.
Consolidated actions by Walter Landwehr and by Christ Thomsen and others against the Hercules Steel Casting Company, for which Edward L. Cullen was appointed receiver, the first Wisconsin Trust Company, as trustee, and others. Judgment for plaintiffs, and defendants Cullen and others appeal. Affirmed.--[[[By Editorial Staff.]
Judgment entered March 26, 1927. Receivership. An action was begun in the circuit court of Milwaukee county, entitled “Walter Landwehr, Plaintiff, v. Hercules Steel Casting Company, Defendant,” and an order was made May 24, 1923, appointing Edward L. Cullen receiver of the said company. Prior thereto and in the year 1922 an action had been brought for the appointment of a receiver of the Hercules Steel Casting Company, application was denied, but the action was never dismissed. This last action was entitled “Chris Thomsen et al., Plaintiffs, v. Hercules Steel Casting Company et al., Defendants.” While the receivership proceedings were pending the two actions were consolidated and the appeals are two: First, by Edward L. Cullen, receiver; and, second, by Francis E. McGovern and Abigail McGovern, executor and executrix of the last will of P. H. McGovern.
The facts will be stated in the opinion.McGovern, Lyons, Curtis, Devos & Reiss, H. K. Curtis, Joseph G. Hirschberg, and Norman L. Baker, all of Milwaukee, for appellants.
William J. Morgan, of Milwaukee, for Wisconsin Mortgage & Securities Co.
Quarles, Spence & Quarles, of Milwaukee (J. B. Quarles, of Milwaukee, of counsel), for First Wisconsin Trust Co.
The case presented here includes over 1,000 pages of printed matter. There are nearly 400 pages of briefs. We regard the amount of printing presented in this case in this court as entirely unjustifiable and being an unwarranted expense to parties. It is not in accordance with the rule and we feel that it should not be passed without comment. In view of the decision reached, we are not called upon to consider the matter so far as it relates to the taxation of costs.
There are three principal questions raised in this case: I. Did the trial court err in refusing to subordinate the rights of the first mortgagee to the entire expense of the receivership? This question arises upon the appeal of the receiver. II. Did the court err in allowing interest upon the first mortgage? III. Did the court err in awarding to the first mortgagee as real estate certain specified equipment consisting principally of flasks, stores, and supplies? Questions II and III arise upon the appeal of the executor and executrix of the will of P. H. McGovern, second mortgagee.
The First Wisconsin Trust Company was trustee under a first real estate mortgage recorded November 13, 1922, to secure an issue of bonds of the face value of $100,000 held and owned by the Wisconsin Mortgage & Securities Company, successor to the Bankers' Finance Corporation. There was a second mortgage upon the real estate and personal property of the casting company to P. H. McGovern to secure $25,000. This mortgage was recorded as a real estate mortgage on February 16, 1923, and filed as a chattel mortgage February 16, 1923. There were three junior mortgages securing indebtedness aggregating $16,248. The court found that from and after April 1, 1923, there was due to the First Wisconsin Trust Company, trustee, on bonds and mortgage, the amount of $100,000, together with interest at 7 per cent. per annum from the 1st day of April, 1923, and interest at 7 per cent. on the interest on which default had been made. On December 31, 1926, there was due on account of interest $13,553 and account of interest on defaulted interest installments according to the terms of the trust mortgage $2,290.86, making in all $115,843.86. The second mortgage by its terms declared that it was subject to a mortgage for $100,000, dated October 2, 1922, recorded November 13, 1922. The property was sold by agreement of all the parties in interest free and clear of all liens and incumbrances upon stipulation:
“That upon the sale of said property all valid liens and incumbrances upon such property, or any part thereof, and rights of preference and priority, should be transferred to, impressed with, and attached to, the proceeds of such sale in the respective order of preference and priority existing prior to such sale.”
Upon the sale the real estate including the disputed equipment items brought $127,500, to which was added later some interest upon deferred payments. The court found as conclusions of law that, upon the sale of the real property and disputed equipment to Pawling & Harnischfeger Company, a sum amounting to $123,740 was the proceeds of real estate, subject to the first trust mortgage to the First Wisconsin Trust Company as trustee, and should be distributed as such; that a remainder of $3,760 realized on the sale to Pawling & Harnischfeger Company was the proceeds of the sale of personal property, subject to the P. H. McGovern mortgage, and should be distributed as such. The situation can be most briefly and concisely presented by the following analysis of the receiver's report:
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¦Receipts. ¦
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¦The total receipts of the receiver, either paid to him or deposited ¦$159,702¦
¦with the clerk of the court, are ¦10 ¦
+-----------------------------------------------------------------------------+
These receipts are set forth in detail in the receiver's reports hereinbefore referred to and such receipts may be grouped for convenience as follows:
These disbursements are set forth in detail in the receiver's reports hereinbefore referred to and such disbursements may be grouped for convenience as follows:
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¦a. Accrued pay roll ¦$ 9,720 27 ¦
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¦b. Watchman ¦1,664 90 ¦
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¦c. Current pay roll and labor ¦8,047 78 ¦
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¦d. Office expense, stenographer ¦531 46 ¦
+---------------------------------------------------------------+-----------¦
¦e. Accounting to determine unpaid stock subscriptions ¦302 50 ¦
+---------------------------------------------------------------+-----------¦
¦f. Legal notices published or served ¦351 96 ¦
+---------------------------------------------------------------+-----------¦
¦g. Merchandise ¦3,225 39 ¦
+---------------------------------------------------------------+-----------¦
¦h. Freight and cartage ¦262 84 ¦
+---------------------------------------------------------------+-----------¦
¦i. Disbursements in litigation...To continue reading
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