Cleveland v. Marine Bank of Milwaukee

By the Court, DixoN, C. J. Two points are raised ip support, of the demurrer : one, that there is a defect of parties defendant, counsel understanding by that term not only a mere deficiency or non-joinder, but a misjoinder of parties with respect to the causes of action; the other, that the plaintiff should have proceeded to judgment at law against the bank before he could resort to these proceedings. Upon the first point we are referred to-sections 29 and 30, ch. 125, R S., regulating the causes of action which may be united in the same complaint, and how they must affect the parties. Under those sections it is contended that causes of action upon unliquidat- ■ ed demands against the bank, and at the same time against the stockholders, are inconsistent and cannot be joined. We need .not determine how the argument would stand with reference to those sections, as we should be obliged to do provided they were applicable to the case. We are of opinion that they have •no influence whatever over it, but that it is a special statutory proceeding exclusively governed by the provisions of chapter 148. Under the latter chapter, then, we must examine the other point. And here it seems to us that the provisions of section 25 are decisive of the point. It is a strict question of statutory interpretation, and that section declares: “ If such application be made by a creditor of a corporation -whose directors or stockholders are made liable by law for the payment of such •debt itx any event or contingency, such directors or stockhold [549] ers, or any of them, may be made parties to the actios., at the commencement thereof or in any subseq unt stage of "the proceedings, whenever it shall become necessary to enforce such liability.” Counsel refer to the next section, which provides that if any creditor of a corporation desires to make such directors or stockholders parties to the action, after a judgment therein against the corporation, he may do so by filing a complaint against them founded upon such judgment. But this is no more than an extension of the remedy to such creditors as may choose to proceed to judgment against the corporation before resorting to the equitable proceeding provided by the statute, as all clearly may do before the latter is instituted, and »3r no means implies a denial of the action expressly author-ised by section 25. The two sections are not inconsistent, each being intended to apply to a different class of creditors, so as together to form a complete and harmonious system. Counsel likewise refer to the opinions of this court in the cases of Coleman vs. White and Carpenter vs. The Marine Bank and others, 14 Wis., 700. It is hardly necessary to say more, in answer to this branch of the argument, than that this question was not involved in those cases. Nor is it discussed. It is true that it was observed that the ai don given by the statute against banking and insuran/uo' corporations and their stockholders was like that against eOrporatfossjjnfrtheir delinquent subscribers for the capital stock, which can only be instituted by a judgment creditor; and Adler vs. Milwaukee Pat. Brick Co., 13 Wis., 57, was cited. Still the points of resemblance were not carried so far as to indicate that both must be commenced by creditors by judgment. The former, as we have already seen, may, by express provision of the statute, be instituted by a creditor at large, and thenceforth the two proceedings are not unlike in many particulars ,pf reason and practice. — Whether it was wise or unwise thus to allow the creditor to join the corporation and the stockholders in the [550] firsff instance, is not for ns to consider. We are to construe -and give effect to tbe statute as we find it. The order of the circuit court must therefore be reversed, and the cause remanded for further proceedings according to law.