Sheboygan Machine Co. v. Brooks Oil Co.

Per Curiam. On the call of the case in this court a motion was made to dismiss the writ of error, on the ground that not all essential parties were made parties to the bill of exceptions and served. J. P. Harden was named as representative of a class of general creditors, but was not made a party to the bill of exceptions. The plaintiff in error amended the bill of exceptions in this court, by making J. P. Harden a party defendant thereto, and attached'to the motion to amend and tendered to the court a written acknowledgment and waiver of service and consent and agreement that the case be heard by this court, which was duly signed by J. P. Harden. In view of the above, the motion to dismiss on the ground stated is denied. The exception is to a judgment appointing a receiver. The basis of the suit was that there was litigation consisting of a number of suits brought by creditors, one levy having already been made, and others threatened. The petition does not allege insolvency; on the contrary, it alleges facts which would negative insolvency. It is alleged that the defendant is a going concern; and that if the property be levied on piecemeal, it would dismember the manufacturing plant, and none of the creditors would realize anything on their debts. The judgment appointing a receiver must be reversed. Judgment reversed. All the Justices concur, except Bussell, C. J., and Sill, J., who dissent, and Hines, J., absent for providential cause.