Williams v. Meloy

WiNslow, J. Since the decisions of this court in the recent cases of Gianella, v. Bigelow, 96 Wis. 185, and Booth v. Dear, 96 Wis. 516, it cannot be doubted that the plaintiff, as a creditor of the bank, states a good cause of action, under secs. 3223 and 3224, R. S., to charge the defendants, as stockholders of the bank, on account of their additional personal liability to the amount of their respective shares of stock, created by sec. 47, ch. 479, Laws of 1852. It is settled that this liability is an original, primary liability of the stockholders to the creditors, but to be enforced by an action in equity brought by one creditor on behalf of all. In Booth v. Dear, supra, it was said: “ It is sufficient to allege and show that the plaintiff is a creditor of the corporation, having a debt due and payable; that he sues on behalf of himself and all other creditors of the corporation; that the defendants are stockholders liable for such indebtedness, under sec. 47, ch. 479, Laws’ of 1852; and that, if the corporation be not made a defendant, sufficient reason be set forth to warrant the omission.” All this and more is fully set forth in the complaint before us, and we must hold that it states a good cause of action in favor of the plaintiff as a creditor, and on behalf of all other creditors. The fact that he states that he brings the action also as assignee of the bank cannot affect his right to maintain it as creditor. He has apparently sued in a dual capacity, and in such a case, if he is entitled to maintain the action in either capacity, the complaint is not demurrable. Geilfuss v. Gates, 87 Wis. 395. The objection that the assignee must be joined as a party defendant is untenable. If his presence be necessary in the action (which is not decided), still he is a party plaintiff, and this is sufficient. By the Court.— Order affirmed.