Lathrop v. Knapp

The following opinion was filed at the June term, 1874. Dixon, C. J. There can be little doubt, I think, about the power and capacity of the receiver to bring this suit. It is immaterial that he was not expressly authorized to sue by the judgment or order of the court appointing him, made on the 9th of November, 1867. He could be so authorized by subsequent order,, and such order was made on the 12th of March, 1869, and before this action was brought. The objection that he has no capacity to sue, because, as receiver, he represents all the parties to the subscription, of whom the defendant Knapp is one, and, therefore, .that Knapp is both plaintiff and defendant in the action, which it is said be cannot be, is untenable. It often happens that receivers of partnerships and of corporations are so situated that they must bring such suits against a partner or a stockholder who may ultimately be entitled to share in the proceeds. There would be a lack of justice in such cases — a wrong without a remedy, if the receiver could not sue. My views of these questions are the same as expressed on the former appeal. Lathrop, Receiver, v. Knapp, 27 Wis., 214, 232. And my views respecting the validity of the subscription, expressed when the cause was here before, also continue unchanged, as do those of Mr. Justice Cole. Upon this question we are divided in opinion, and must so remain, whilst Mr. Justice Lyon, regarding himself as incompetent to sit, [311] refuses to take part in tbe decision, or to turn tbe scale between us. It results from this difference of opinion between Mr. Justice Cole and myself, and tbe inability of Mr. Justice LyoN, that tbe decision of the circuit court upon this question must be affirmed. The circuit court held the subscription valid; and I am of the same opinion, for the reasons given upon the first appeal. There is thus left but one question to be determined upon this appeal, which was not involved in the former decision; and that is, the question of estoppel by the judgment in Collins v. Case, the same brought to this court and affirmed on appeal, 23 Wis., 230. It is said that the circuit court found and determined in that action (which finding and determination were affirmed by the affirmance of the judgment by this court), not only that Mr. Knapp, the defendant here, had not paid over the amount of his subscription to Mr. Case, the defendant in that action, but also that he had paid over the same to Goddard, Steers & Co.; and such finding and determination are now insisted upon as an estoppel. The answer to this position is quite plain and simple. It is found in the very words of Mr. Herman, quoted in the brief of counsel, where he says : “ It is often necessary to reason back to the foundation upon which the judgment rests, on the principle that when a conclusion is indisputable, and could only have been drawn from certain premises, the premises will be equally indisputable with the conclusion. * * * Again, a former judgment is conclusive, not only of things directly decided, but of every fact which was essential to the adjudication.” Herman on Estoppel, 83. By turning to the report of Collins v. Case, it will be found that the circuit court, and after it this court, held that the object of that action, and the sole-object, was to compel Mr. Case to account for moneys which had been paid in to him by the subscribers. It was in effect an action for money had and received by Mr. Case for the use of the subscribers, and to recover such money. When, therefore, [312] the court determined that Mr. Case had not received. Mr. Knapp’s subscription, it determined' all that was essential to that adjudication. Whatever the court found or determined beyond that, was immaterial and unnecessary to the judgment, and not res adjudicata. It had no binding force or effect one way or the other. This principle is too clear and well settled to admit of comment or controversy. It was-affirmed by this court in Hardy v. Mills, a decision of even date herewith, which see, and authorities there cited (35 Wis., 141). See also Freeman on Judgments, § 271, and authorities there cited. It follows from these views,, that the judgment appealed from must be affirmed. By the Court. — Judgment affirmed.