Burhop v. Roosevelt

Dixon, C. J. The decision heretofore made upon the demurrer of the city (18 Wis., 431), that the action could not be maintained without the holders of the bonds being made parties, necessarily presupposed that the holders would be made [343] parties in such a manner that tbe court could, in case tbe bonds were adjudged to be invalid, compel tbe holders to surrender them to be cancelled. Tbe bonds have many years to run, and are negotiable, passing from band to band like commercial paper, and unless they are surrendered, or tbe court can compel them to be, it is obvious that no such protection can be afforded to tbe city as against future holders. Such holders being purchasers in good faith without notice of this suit, would not be bound by tbe judgment; and tbe city might still be held liable to pay. It is manifest, therefore, that to make these proceedings effectual to protect'the city, tbe holders of tbe bonds must not only be parties in a general sense, but the court must have jurisdiction of their persons, so that its mandates can be enforced by process of attachment and imprisonment in case of any contempt or disobedience on the part of such holders. In other words, the court must have full power to compel a surrender of the bonds, which it would not have if the holders are not residents of the state. These remarks are based upon the statements of counsel, that the holders of the bonds, or some of them, reside abroad. In fact it appears by the record returned by the clerk, that some or all of them were brought in by publication. But as this is a demurrer to the complaint, in which the places of residence of the holders of the bonds are not stated, we suppose it cannot be assumed that they are not residents of this state. Neither can we look into the order of publication, nor consider the statements of counsel for the pmpose of ascertaining the facts. It may perhaps be a query, whether a complete right of action is stated in the complaint, without an averment that the holders of the bonds do reside within this state. We. reverse the order sustaining the demurrer, and remand the cause for further proceedings according to law. By the Court — Order reversed.