themselves to be creditors of the bank to an the officers and stockholders of the bank were amount aggregating nearly $60,000, made a made parties, and apt allegations were made petition to the court in the Marsden action, al- seeking to charge the stockholders and offleging their character as creditors, setting cers with various statutory and common-law forth the names of the stockholders, and al- liabilities; and upon demurrer this court said, leging that the bank had been insolvent since in substance, that the action so commenced January, 1885, and was known so to be by the was the exclusive action, and that all creditdirectors. This petition also alleged negli- ors must seek their remedy therein, and that gent management by the directors, and facts the various liabilities of officers and stockshowing statutory and common-law liabilities holders must be enforced in this one suit. on the part of the directors and stockholders, This conclusion is more or less strongly supsubstantially like the charges contained in the ported, also, by the conclusions reached in Hartzheim action; prayed that they be made the following cases in this court, viz.: Ballin plaintiffs in the Marsden action, and that v. Loeb, 78 Wis. 404, 47 N. W. 516; Ford v. Marsden and all the directors and stockhold- Bank, 87 Wis. 503, 58 Y. W. 766; and In re ers be made defendants therein, and that the Oshkosh Mut. Fire Ins. Co., 77 Wis. 366, 46 complaint therein be amended so as to charge N. W. 441. The amended complaint in the the various liabilities of directors and stock- case of Marsden against the bank was almost holders as alleged in the petition, and that identical with the first complaint in the case the petitioners be allowed to recover against of Hurlbut v. Marshall. It showed that it said directors and stockholders on account of was brought by a creditor as well as a stocksuch liability in said action. Upon the hear- holder of the bank, and it sought to adminising of this petition the appellant, Hartzheim, ter and wind up the affairs of the bank. It voluntarily appeared and was heard, and an did not contain a distinct allegation that it order was made that the petitioners, C. M. was brought on behalf of all creditors, but it Gager and others, be made plaintiffs in the prayed that all the creditors might come in Marsden action, and that Marsden be made and be made parties, and receive dividends; a defendant therein, and that all the creditors and, moreover, being an action under sections of the bank who have proved their claims be 3218 and 3219, supra, it was necessarily for also made parties plaintiff, and that the pe- the benefit of all the creditors who chose to titioners be authorized to amend the com- come in and prove their claims, and could not plaint, and to join all officers and directors be otherwise. Now, although, when Hartzof the bank as defendants, alleging all the heim commenced his action, no officers or facts showing liability upon their part, and stockholders had yet been made defendants that the Hartzheim action be enjoined and in the Marsden action, nor had they been restrained from further prosecution, but that charged with any liability, still the action Hartzheim be allowed to come into the Gager was one in which such additional defendants action with all the privileges of a party could be brought in, and their liability asthereto. From that part of the order enjoin- certained and enforced, at any time when it ing the prosecution of his action, Hartzheim appeared to be necessary; and this might be appeals.

done on motion of a creditor who had become Felker, Doe & Felker, for appellant. Olin a party to the action by proving his claim, & Butler, Sutherland & Nolan, Jackson & and even after judgment against the corporaJackson, and Fethers, Jeffris, Fifield & Mouat, tion. Rev. St. Wis. 1898, 88 3221, 3222. Thus, for respondent.

the action of Marsden against the bank was

at the time of the commencement of the WINSLOW, J. (after stating the facts). Hartzheim action potentially an action to enThe question presented is whether the circuit force all the obligations of the officers and court was right in holding that the action stockholders to the creditors which may be commenced by Marsden, which was at first enforced by a creditors' action in equity, and an action against the bank alone, is the exclu- it was undoubtedly the proper course for a sive action in which not only the assets of creditor to come into that action to obtain the bank are to be administered, but also the his relief. Furthermore, a receiver had alliabilities of officers and stockholders are to ready been appointed to the Marsden action, be ascertained and enforced, or whether the and was in possession of the property of the court should have held that Hartzheim's ac- bank, and was administering it. To hold that tion is the proper action in which the liabili- Hartzheim might begin and maintain another ties of officers and stockholders are to be en- action to reach the same results which might forced. This question seems to be satisfac- be readily reached in the action already pendtorily answered in accordance with the rul- ing would be to add confusion to that which ing of the circuit court by the case of Hurlbut was already sufficiently confused. One action v. Marshall, 62 Wis. 590, 22 N. W. 852. That to enforce the various liabilities of officers and case was originally brought by a creditor stockholders will present difficulties amply against an insolvent banking corporation sufficient to test the learning and business alone, seeking simply to administer the assets ability of the court and its officers. The reof the bank. It was plainly brought under marks made by Chief Justice Cole in the case sections 3218, 3219, Rev. St. 1878. After- of In re Oshkosh Mut. Fire Ins. Co., 77 Wis. wards, however, the complaint was amended, 366, 46 N. W. 441, are quite to the point here.

He says on pages 369 and 370, 77 Wis., and Henry Marsden, as a stockholder of the page 442, 46 N. W.: "Different suits brought defendant banking corporation, commenced, to secure the same ends are always consider- as sole plaintiff, an action against such cored objectionable. It would be especially so poration, as sole defendant, for the appointin this litigation, to have different receivers ment of a receiver and settlement of its afappointed to take charge of the same estate, fairs because it was insolvent. A receiver dispute and wrangle over its control, disposi- was appointed with the usual powers in windtion, and management, and increase the ex- ing-up proceedings, who duly qualified and pense and cost of settling it, for no useful pur- took charge of the property of the corporation, pose whatever. Confusion and conflict would Later the complaint was amended so that inevitably arise between the receivers in the Marsden appeared as a stockholder and credtransaction and adjustment of the affairs of itor as well. It contained the necessary althe corporation, and this is to be avoided, it legations in an action to dissolve and fully possible.” The order appealed from provides settle the affairs of an insolvent corporation, that Hartzheim be permitted to come into the and a prayer for appropriate relief in such Gager action as a party, with all the rights cases. Later C. M. Gager and other creditors and privileges of a party. So his rights are of the bank, who now appear as plaintiffs, pefully preserved. The order of the circuit titioned the court, setting forth their creditor court, enjoining the prosecution of the Hartz- relations to the corporation and facts tending 'heim action, and requiring all the creditors to to show that the directors of the bank neglicome into the Gager action to seek their reme- gently permitted the money deposited therein dies, was plainly right. Order affirmed. to be lost, squandered and stolen; that they

knowingly permitted false reports as to the condition of the bank to be filed with the state treasurer and with the register of deeds

of Rock county; that said reports, though GAGER et al. V. MARSDEN et al false, were attested as true by directors for (Supreme Court of Wisconsin. Jan. 10, 1899.)

the purpose of deceiving persons into deposit

ing money with the bank, and that on the INAOLVENT BANKS ACTIONS ExcLUSIVENESS JOINDER OF CAUSES–PARTIES-CAPACITY

faith of such representations the petitioners TO SUE-SUBSTITUTION-DEMURRER.

so deposited money; that with knowledge of 1. Error in substituting plaintiffs is not sub

the insolvency of the bank dividends were ject to review on demurrer to the complaint.

paid to stockholders; that the capital stock 2. Error in making a substitution of plaintiffs was not fully paid; that through fraudulent does not go to their legal capacity to sue. 3. Creditors of an insolvent bank petitioned to

practices of the directors the entire capital be substituted as plaintiffs, instead of a stock

and surplus of the bank, and a large part holder who had commenced an action for the of the money deposited by stockholders, bad appointment of a receiver; alleging that the been stolen, wasted and lost; that plaintiti bank's money had been wasted through fraudulent practices of the directors, and that plaintiff

Marsden was one of the guilty parties, and all was one of the guilty parties. Held, that the

the stockholders and otficers of the bank creditors were competent to prosecute such an should be made parties to the action to the action.

end that the liabilities of each might be de4. An objection that plaintiff has no legal "capacity to sue” implies legal disability, and does

termined and enforced, and all the affairs of not go to the cause of the action.

the corporation wound up. The prayer was 5. Rev. St. 1878, § 3218, provides that, when that petitioners be substituted as plaintiffs a banking corporation shall become insolvent, the court may restrain it from transacting busi

in place of Marsden, that he be made a deness; section 3219 provides that the injunction fendant, that the officers and stockholders of may issue at the commencement of any action the bank should all be made parties defendby any creditor or stockholder; and section 3227

ant, and that the complaint be amended, setprovides that when an action shall be commenced under any of the provisions of the chap

ting forth the facts mentioned in the petition, ter against a corporation, its officers or stock- with appropriate prayer for relief. The pe holders, the court may, on application of either tition was granted and an order entered acparty, restrain all proceedings by any other creditor. Held, that but one winding-up suit is

cordingly, and enjoining proceedings on the proper, and in an action by a creditor to close

part of other creditors against the defend. the business of an insolvent bank the statutory ants till the further order of the court. The liability of stockholders, the liability of directors,

complaint was amended accordingly, to which officers, and stockholders for the indebtedness of the bank, and the liability of the directors or

Marsden, as defendant, demurred, first, for other officers to make good any money squander

want of legal capacity of plaintiffs to sue; seced through their fraud or negligence, may be en- ond, for defect of parties plaintiff'; third, for forced; the several liabilities not being differ

defect of parties defendant; fourth, for the ent causes of action.

improper joinder of several causes of action; Appeal from circuit court, Rock county;

ifth, for want of facts stated sutticient to John R. Bennett, Judge.

constitute a cause of action against Marsden. Action by C. M. Gager and others against

The demurrer was overruled and Marsden Henry Marsden, impleaded with the Bank of appealed. Edgerton and others. From an order overrul. Fethers, Jeffris, Fifield & Mouat and E. D. ing defendant Marsden's demurrer to the com. McGowan, for appellant. Sutherland & Na plaint, he appeals. Affirmed.

lan and Olin & Butler, for respondents.

MARSHALL, J. (after stating the facts). departed from that view, as indicated in the In support of the objection to the complaint opinion of Mr. Justice Winslow in Gager v. that plaintiffs have not legal capacity to sue, Bank (decided herewith) 77 N. W. 920. The appellant's counsel say the court erred in careful practitioner hardly need go astray besubstituting Gager and his associates as plain- cause of cases where only a part of the retiffs in place of Marsden. It is a sufficient an- lief obtainable in a winding-up proceeding swer to that suggestion to say that mere er- was sought and which were sustained for ror of the court in making the substitution of that particular relief. Gianella v. Bigelow, plaintiffs, if there be such error, and none is 96 Wis. 185, 71 N. W. 111, Booth v. Dear, 96 perceived, does not go to legal capacity of Wis. 516, 71 N. W. 816, and Williams v. Methe plaintiffs to sue. The order of the court loy, 97 Wis. 561, 73 N. W. 40, were solely to substituting the present plaintiffs for Marg- enforce the personal statutory liability of den, stands as the law of the case till re- stockholders, sustained as such and properly versed or set aside in some proper proceed- so, but in perfect harmony with Hurlbut v. ings. It is not subject to review on demurrer Marshall, supra, that the same liability, and to the complaint. The complaint stands as all other liability of stockholders and offiif the action were originally commenced by cers of corporations may be enforced as part the present plaintiffs against the present de- of the relief obtainable in a general windfendants. It cannot be seriously contended ing-up suit. Gores v. Day, 99 Wi&. 276, 74 but that plaintiffs, as creditors of the bank, N. W. 787, and South Bend Chilled-Plow Co. were competent to institute and prosecute v. George C. Cribb Co., 97 Wis. 230, 72 N. W. such an action, and that is the only subject 749, were instituted by creditors to enforce covered by the demurrer on the ground of the liability of corporate officers to make want of legal capacity to sue. Murray V. good money lost through their fraud and culMcGarigle, 69 Wis. 483, 34 N. W. 522. pable negligence, and it was said, following

In support of the demurrer that several literally the words of section 3239, Rev. St. causes of action were improperly joined, 1878, that such liability could be enforced in counsel for appellant ingeniously argue that an action by creditors, as was there attemptthe several provisions of chapter 140, Rev. ed. But there is nothing in the opinions in St. 1878, relating to the winding up of cor- those cases warranting the contention that porations and distributing their assets, and the remedy cannot also be administered in a enforcing the liability of stockholders and general winding-up suit. The section referred officers, contemplate several distinct actions to expressly provides that the jurisdiction of on separate and distinct causes of action to the court over the subject referred to therein enforce distinct species of liability, and they shall be exercised in an action prosecuted by argue with much earnestness and learning the attorney general in the name of the state that the law governing the subject is in much or by any creditor of the corporation, or by confusion and uncertainty, and appeal to the any director, trustee or officer thereof havcourt to clear that up and make the practice ing a general supervision of its affairs, as plain to the bench and bar in this very im- the case may require or the court may diportant field of litigation. If all uncertain. rect. Whether the action be brought by a ties in regard to a subject involving such a creditor under section 3219 to enjoin the offidiversity of interests can be removed, pre- cers of the corporation, or under section 3223 cluding all opportunity for different legal to charge directors, trustees or other officers minds to come to different conclusions, “'tis a or stockholders of a corporation on account consummation devoutly to be wished;" but of a liability created by law, or under section human experience does not leave room for 3239 to enforce the liability under section hope that the desired end can be reached. 3237, or the common-law liability to make The law will probably never be settled with good money negligently or fraudulently lost suficient definiteness to prevent learned or wasted, it will readily be seen makes no counsel, stimulated to exertion by new sit- difference with the power of the court to uations or old but unfamiliar situations, from broaden the action out so as to administer suggesting and urging upon the attention of all the relief obtainable under all the sections the court over and over again old questions mentioned, and others contained in chapter which, in the light of some unusual hardship 140, if the matter be looked at considerately, appear, to those whose desired course is even as an original proposition depending on barred thereby, to have been settled wrong or the plain wording of the statutes. A crednot to cover at all the particular environment itor may bring an action in either case. It in which they find themselves.

It was sup

is said in section 3239, that the jurisdiction of posed that Hurlbut v. Marshall, 62 Wis. 590, the court over the subjects mentioned in sec22 N. W. 852, determined for all time in this tion 3237 shall be enforced in a creditors' court, and for all courts of this state having action as well as in an action brought by the to do with the subject, that but one winding- attorney general or by an officer of the corup suit to settle the affairs of a corporation poration; and it is said in section 3227 that is proper, and that in such suit all the rights whenever an action shall be commenced unand all the liabilities of creditors, officers and der any of the provisions of chapter 140, stockholders are to be worked out. This against a corporation, its officers or stockcourt so understood it then and bas never holders, the court may, on the application of either party, at any stage of the proceeding, that the plaintif may reply to that part of restrain all proceedings by any other cred- the answer constituting a counterclaim. Secitor against the defendants in such action. tion 2883, as it stood up to the time of the The fact that when an action under chapter late revision, which bas not in fact changed 140 is brought to enforce the liability of it, authorized judgment for or against one or stockholders or officers, all other actions by more of several defendants, and determining creditors may be enjoined, carries with it as the ultimate rights of parties on each side as plainly as if expressed, that all liabilities are between themselves, and granting to any deenforceable in the one action that may be fendant any affirmative relief to which he enforced in an action brought under any one may be entitled. The system is complete, as of the sections. The legislative scheme is said in Kollock v. Scribner, 98 Wis. 104, 73 that the whole subject of winding up a cor- N. W. 776, enabling the court in a single acporation, settling with its creditors and dis- tion, by the presentation of issues made up tributing its assets, shall be brought before by the complaint, answer and reply, to take the court as one cause of action. The vari. within its jurisdiction a single subject or conous liabilities enforceable in such action are troversy, and all parties interested therein not separate causes of action, but are mere adverse to the plaintiffs, and all necessary incidents or parts of one subject or cause of to be before the court for their due protection action: the settlement of the corporate af- and for the determination of the entire confairs. In an equitable action many matters | troversy, including such matters as may be are often adjudicated which would form the germane to the primary subject of the action. subject of an independent action, either at Considering the sections of the Code above the suit of plaintiff against one or more of referred to with the sections of chapter 140 the defendants, or between different defend- relating to the enforcement of rights respectants, yet are properly brought before the ing corporations, their officers or stockholdcourt as germane to the subject of the ac- ers, it will readily be seen how perfectly they tion stated in the complaint. They are not are adapted to the formation and trial of all separate causes of action, but incidents of a

the issues necessary to a full determination single subject or cause of action forming the and perfect protection of all the rights of purpose of the suit.

each and all the parties in an action that may The foregoing is in accordance with the be properly brought before the court therein, plain scheme of the Code. It was designed and that no other method exists or can be to preserve and make more perfect by new suggested that will accomplish that result. forms the method for the settlement in one The whole scheme appears to be free from action, denominated a "civil action," of all confusion, free from uncertainty, and free the rights of a party plaintiff, or parties plain- from all difficulty even if it were not settled tiff united in interest in the subject thereof, by prior adjudications of the court. and the rights of adverse parties, both as be- If a suit be brought by a creditor under sectween them and the plaintiff or plaintiffs, or tions 3218 and 3219, to close up the entire busisome of them, and between themselves, not ness of a corporation, the statutory liability only as to the subject of the action but the of stockholders, and the liability of directors subjects germane thereto. Section 2602, Rev. and officers and stockholders of the corporaSt. 1878, says, “All parties having an interest tion for the payment of the indebtedness of in the subject of the action and in obtaining the corporation in any event or contingency the relief demanded may be joined as plain- and the liability of the directors, managers, tiffs," unless otherwise provided. Section trustees and other officers of the corporation 2603 provides that "any person may be made to make good any money or property squana defendant who has or claims an interest in dered or lost through their fraud or neglithe controversy adverse to the plaintiff, or gence, are all germane to the subject of the who is a necessary party to a complete deter- | action, therefore may all be properly brought mination or settlement of the questions in- in as parts of the one controversy. The vavolved therein." Section 2604 says, the par- rious liabilities in such an event do not conties to the action who are united in interest stitute separate causes of action. There is must be joined as plaintiffs, except they re- but one cause of action, that for the closing fuse, when such as refuse may be joined as up of the business of the corporation; the defendants. Section 2610 provides that the other matters are germane to that cause and court may determine any controversy be- necessary incidents of it. If an action be tween the parties before it when it can be commenced to charge the directors, trustees done without prejudice to the rights of others or other officers or stockholders of a corporaor by saving their rights, and may bring in tion on account of any liability created by all parties necessary to such determination. law, mentioned in section 3223, Rev. St. 1878. Section 2648 says that the only pleading on then under section 3224 the court is required the part of the defendant, aside from a de- to proceed as in other cases, and if it appear murrer, is an answer; but section 2655 pro- that the corporation is insolvent, or it be vides that the answer, in addition to putting claimed that such is the fact, the court is rethe allegations of the complaint in issue, may quired to ascertain and enforce the liabilities state any new matter constituting a defense of directors, trustees and other officers, sub or counterclaim, and it is further provided | stantially the same as in an action to close