spondent, to show how the inaccurate statement in the opinion came to be made.

As before indicated, a mere motion to strike from the calendar did not successfully reach the defect, or the failure to insist upon such motion waive it. Counsel for appellant had evidently read with profit Mills v. Insurance Co., and invoked the statute at the very point where it barred further proceedings, by objecting to the trial and moving the court to stay such proceedings till respondent paid the costs as provided by law. That being denied, and one of the reasons (not good, however) urged for it, as appears, being that the statute allowed one year for payment of the costs, notwithstanding a trial in the meantime, at the first opportunity after the expiration of the year, not waiting for the regular term of the court, a motion was made to dismiss the cause for non-compliance with the statute, and later, when the cause was reached for trial at the regular term, a motion was again made to dismiss on the same ground. Under such circumstances, to say that the statutes shall not be enforced, would be to usurp the functions of another department of the government, and judicially, in form, annul its enactments. The result to the unfortunate plaintiff is to be regretted, but the responsibility resting here could not otherwise be properly discharged than by the decision rendered.

The motion for rehearing is denied.

MOULTON v. WILLIAMS. (Supreme Court of Wisconsin. Nov. 22, 1898.) JUSTICE COURT SERVICE OF SUMMONS-LIMITATION OF ACTIONS-WAIVER-ATTEMPT TO COMMENCE ACTION.

1. Failure to make the affidavit required by Rev. St. 1898, § 3608, showing the necessity for the appointment of a person to serve a summons from a justice court, renders a service void if made by a person appointed therefor.

2. Where a void service of a summons in an action before a justice was followed by a sufficient service before the return day, if limitations have run against the action after the first and before the second service, the benefit thereof is not waived by an appearance in response to the first service.

3. The statute of limitations can only be waived by defendant's failure to plead it and insist thereon.

4. Delivery in good faith of a summons from a justice court for service to a person incapable of making a valid service is not an attempt to commence an action, within Rev. St. 1898, 4240, suspending limitations where an unsuccessful attempt to commence an action is made, since that section applies to cases in which service may be made by publication of the summons. Appeal from circuit court, Waushara county; Charles M. Webb, Judge.

Action by James A. Moulton against J. J. Williams. From a judgment for defendant, plaintiff appeals. Affirmed.

Action commenced in justice court to recover on a promissory note. The summons was served by a person appointed for that pur

pose, under section 3608, Rev. St. 1898, but the necessity for the appointment was not first established by affidavit filed with the justice as required by such section. Two days after the first service, and a sufficient time before the return day of the summons, a second service' was made by an officer authorized by law. Defendant appeared generally, but whether in response to the first or the second service is not shown. After the first service and before the delivery of the summons to the officer to be served a second time, the statute of limitations ran on the note. Defendant pleaded the statute of limitations, and on the trial in the circuit court to which the action was carried by appeal, recovered on such plea, the theory of the court being that the first service was void and did not interrupt the running of the statute of limitations. Plaintiff appealed.

Perry Niskern, for appellant. S. G. Potter, for respondent.

MARSHALL, J. (after stating the facts). An affidavit of the plaintiff, or some one in his behalf, first duly filed with the justice, establishing a necessity for the appointment of a person to serve the summons, was a condition precedent to such appointment under section 3608, Rev. St. 1898. That condition not having been complied with, the first service was void. If the appearance can be said to have been in response to the void service it did not waive the benefit of the statutes of limitations. Its only effect was to give the justice jurisdiction of the person. The only way the statute could have been impliedly waived was by failure of the defendant to properly plead and insist upon it. It is suggested that if the first service was vold, the delivery of the summons in good faith to the person who made it for the purpose of commencing the action, was an attempt to commence it within the meaning of section 4240, Rev. St. 1898. It is a sufficient answer to that to say that the section applies only where there is a subsequent completed service by publication. It has no application to the facts of this case. Mariner v. Town of Waterloo, 75 Wis. 438, 44 N. W. 512. No other question is raised deserving notice here. Judgment affirmed.

WIDMAN v. GAY.

(Supreme Court of Wisconsin. Nov. 22, 1898.) CONTRACTS BREACH - EVIDENCE APPEALABLE CAUSES-AMOUNT INVOLVED-SEVERAL COUNTS. 1. Under Rev. St. 1898, § 3047, providing that no appeal shall be taken to the supreme court from any judgment when the amount involved, exclusive of costs, is less than $100, unless title to lands is in question or the judge shall certify that an important question or the construction of the constitution is involved, a judgment against plaintiff for costs only on a counterclaim, in a case where he sued for $30. $50, and $118, respectively, and introduced evidence tending to show that he was damaged $97 on the first two

items, and failed to show any damage on the last, is not appealable without a certificate; since plaintiff's recovery could not, on the evidence, in any event, have reached $100.

2. The amount claimed in one of several counts in an action for damages for breach of the contract is not included in the "amount involved," where there was no evidence offered that damage was incurred thereunder; for the omission was, in effect, an abandonment of that

count.

3. Exclusion of a question to plaintiff's husband, "Do you think of any other way in which you have been damaged" by reason of defendant not fulfilling his contract? was proper, as it did not tend to elicit proof of damage to plaintiff.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Carolina Widman against Leonard W. Gay. From a judgment for defendant, plaintiff appeals. Dismissed.

Action to recover $30 alleged to be due as a balance for dirt sold to the defendant to be taken by him from plaintiff's lot, $50 for damages for failure to grade and level the lot according to contract, and $118 damages for not removing the dirt within the time agreed upon, whereby loss was alleged to have accrued to plaintiff from being unable to construct a greenhouse thereon as contemplated, and start the enterprise by operating the Defendant tendered judgment for $20, same. but put in issue all the allegations of the complaint, and also counterclaimed for damages for breach of the contract mentioned in the complaint on the part of the plaintiff to the amount of $200. There was evidence tending to prove that plaintiff was entitled to recover $97 on account of the facts alleged in two of the causes of action set forth in the complaint. As to the other cause of action, there was evidence tending to show that defendant was informed before the contract was made for grading the lot that plaintiff proposed building a greenhouse thereon and to operate the same, but there was no evidence given or offered showing that the enterprise was delayed by defendant's conduct. Some evidence was rejected which will be referred to in the opinion. There was evidence on defendant's part to some extent supporting his counterclaim. The jury rendered a verdict in defendant's favor, on which judgment was rendered against plaintiff for costs, from which this appeal was taken.

Geo. W. & H. S. Bird, for appellant. Frank M. Wooton and C. H. Tenney, for respondent.

MARSHALL, J. (after stating the facts). Section 3047, Rev. St. 1898, provides that "no appeal shall be taken to the supreme court from any judgment when the amount involved, exclusive of costs, is less than $100, unless the title to lands shall therein be in question, or the judge of the court in which such judgment was rendered shall certify that the case necessarily involves the decision of some question of law of such doubt and difficulty as to require a decision of the

same by the supreme court, or that it necessarily involves the construction or interpretation of some provision of the constitution of the United States or of the constitution of this state." No such certificate was made, therefore the judgment we are expected by appellant to review is not appealable unless the amount involved, within the meaning of the statute, exceeds $100 exclusive of costs. As no judgment was rendered against the plaintiff, except for costs, manifestly the amount involved on her appeal, exclusive of costs, cannot exceed the entire amount which she could have recovered on the most favorable view that can reasonably be taken of the evidence. The statute has been carefully construed several times heretofore, so it is not deemed advisable to go over the subject at this time. It is sufficient to refer to Burkhardt v. Elgee, 93 Wis. 29, 66 N. W. 525, 1137, and Henk v. Baumann (Wis.) 75 N. W. 313. The amount involved is not necessarily the amount claimed in the pleadings on either side, or on both sides, but the amount actually claimed by the appellant which was denied him by the result in the trial court, and which is brought up for review on the record as presented in this court. In the opinion in Burkhardt v. Elgee, it is said that the amount involved under the appeal statute, is the amount actually in controversy between the parties as the case stands in this court.

Testing the record here by the foregoing we fail to see why the amount which plaintiff could recover on the evidence in any event could exceed $97. Manifestly, defendant's counterclaim cannot count to increase the amount in controversy beyond that claimed by plaintiff on the evidence, because there is no judgment against plaintiff except for costs. If there was a recovery for any sum on the counterclaim it would have to be added to the total of plaintiff's claim in order to arrive at the true amount in controversy; but that condition does not exist, so the rule cannot be applied.

It is argued that plaintiff's third cause of action should be considered, which would be true if any evidence were received or offered tending to sustain it. But as there was no attempt to prove that plaintiff was delayed in the construction of the greenhouse by defendant's conduct, the court below necessarily treated that branch of the case as abandoned, and it must be so treated here. The learned counsel for appellant argues that he sought to prove damages under the third cause of action and was prevented from doing so by the rulings of the trial court. We fail to find where such attempt was made, except by the offer of evidence that greenhouse stock was ordered and that defendant knew the use that was to be made of the premises; but, as before indicated, in the absence of proof that the enterprise was delayed by defendant's failure to complete his work by the time agreed upon, the fact,

The

if it be a fact, that he knew the plaintiff desired to locate a greenhouse on the lot, or the fact greenhouse stock was ordered by the plaintiff, does not prove, or tend to prove, damages recoverable of the defendant. point most relied upon, we apprehend from a careful reading of the record, to sustain the third cause of action, is that the court sustained an objection to a question propounded to plaintiff's husband after he had testified to matters relating to the first cause of action, as follows: "Do you think of any other way in which you have been damaged by reason of their not fulfilling the contract?" The objection to the question was properly sustained in any view of it, but if it were answered, and favorably to the plaintiff, that would not prove anything material in the case, for it was not damages to plaintiff's husband that were claimed by plaintiff, or that were recoverable of the defendant. We are unable to see how the question could possibly have had any bearing on the subject of the controversy between the parties to the action. So, looking at the case in the most favorable view, that can be taken of it for appellant, and giving her the benefit of all offers of evidence that were made, the only sum involved, so far as she is concerned, is $97; hence the judgment was not appealable without the certificate of the trial Judge as required by law. The appeal is dismissed.

GAGER et al. v. BANK OF EDGERTON et al.

Appeal of HARTZHEIM.

(Supreme Court of Wisconsin. Jan. 10, 1899.) INSOLVENT BANKS-ADMINISTRATION OF ASSETSLIABILITY OF STOCKHOLDERS AND

OFFICERS-ACTIONS.

An action commenced by a creditor and stockholder against an insolvent bank, alone, for the appointment of a receiver and the settlement of its affairs (Rev. St. 1878, §§ 3218, 3219), in which the complaint does not allege that it is brought on behalf of all creditors, but prays that they may be brought in and made parties, is the exclusive action, in which not only the assets of the bank are to be administered, but the liabilities of the officers and stockholders are to be ascertained and enforced, since the complaint is capable of being amended so as to justify that relief on motion of any creditor who has proved his claim.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Henry Marsden against the Bank of Edgerton and others. C. M. Gager and others were substituted as plaintiffs, and from the decree Hartzheim appeals. Affirmed.

This is an appeal from an injunctional order made pendente lite. The facts upon which the order was made were as follows: On the 19th of October, 1897, the Bank of Edgerton was a state banking corporation which had been doing business at Edgerton for a number of years. On that day the bank closed

its doors, and one Marsden, a stockholder in the bank, brought an action in equity against the bank alone, alleging it to be insolvent, and praying the appointment of a receiver, with the usual powers to collect and dispose its assets among the creditors. Upon this complaint, and upon the same day, one L. H. Towne was appointed receiver, and immediately entered on his duties. On November 1st following, upon the application of the receiver, an order was made by the court requiring all creditors of the bank to file their claims and become parties to the action on or before May 10, 1898; and the bank and its officers were enjoined from exercising any corporate rights and doing any banking business, and creditors were also enjoined from commencing any proceedings against the bank to collect their claims. On the 8th day of November, Marsden amended his complaint by adding an allegation to the effect that he was a creditor of the bank in the amount of $38.34, as well as a stockholder therein, and also adding to the prayer for relief, among other things, a prayer that all creditors be required to file their claims in the action and become parties thereto. On November 20, 1897, the appellant, Hartzheim, who was a creditor of the bank to the amount of $512.14, commenced an action in equity on behalf of himself and all others similarly situated against all the officers and directors of the bank, and on December 2d he amended his summons and complaint by making all the stockholders parties thereto. The amended complaint alleged insolvency of the bank since 1888, and that such insolvency was known to the directors of the bank. It also contained allegations charging the officers of the bank with misfeasance and malfeasance, consisting of gross neglect of duty, in allowing the funds of the bank to be squandered and loaned to irresponsible parties, in permitting the cashier to embezzle and steal large sums of money and to pay exorbitant rates of interest to depositors, in making fraudulent reports to the state treasurer as to the condition of the bank, and in declaring dividends, knowing the bank to be insolvent. It also contained allegations charging liability of the stockholders in not paying their subscriptions for stock, and for receiving dividends when the bank was insolvent. The amended complaint further alleged that the Marsden suit was collusive, and brought for the purpose of shielding the officers and directors of the bank from liability; and it prayed for a stay of proceedings in the Marsden case until the determination of the Hartzheim action, or that the two actions be consolidated, and that the defendants be adjudged to be indebted to the plaintiff, and to all creditors who may become parties to the action, to the amounts of their respective claims, and such further proceedings had as are in accord with the statute, and for an injunction against all other actions by creditors. On the 27th of November, 1897, C. M. Gager and about 20 others, who alleged

themselves to be creditors of the bank to an amount aggregating nearly $60,000, made a petition to the court in the Marsden action, alleging their character as creditors, setting forth the names of the stockholders, and alleging that the bank had been insolvent since January, 1885, and was known so to be by the directors. This petition also alleged negligent management by the directors, and facts showing statutory and common-law liabilities on the part of the directors and stockholders, substantially like the charges contained in the Hartzheim action; prayed that they be made plaintiffs in the Marsden action, and that Marsden and all the directors and stockholders be made defendants therein, and that the complaint therein be amended so as to charge the various liabilities of directors and stockholders as alleged in the petition, and that the petitioners be allowed to recover against said directors and stockholders on account of such liability in said action. Upon the hearing of this petition the appellant, Hartzheim, voluntarily appeared and was heard, and an order was made that the petitioners, C. M. Gager and others, be made plaintiffs in the Marsden action, and that Marsden be made a defendant therein, and that all the creditors of the bank who have proved their claims be also made parties plaintiff, and that the petitioners be authorized to amend the complaint, and to join all officers and directors of the bank as defendants, alleging all the facts showing liability upon their part, and that the Hartzheim action be enjoined and restrained from further prosecution, but that Hartzheim be allowed to come into the Gager action with all the privileges of a party thereto. From that part of the order enjoining the prosecution of his action, Hartzheim appeals.

Felker, Doe & Felker, for appellant. Olin & Butler, Sutherland & Nolan, Jackson & Jackson, and Fethers, Jeffris, Fifield & Mouat, for respondent.

WINSLOW, J. (after stating the facts). The question presented is whether the circuit court was right in holding that the action commenced by Marsden, which was at first an action against the bank alone, is the exclusive action in which not only the assets of the bank are to be administered, but also the liabilities of officers and stockholders are to be ascertained and enforced, or whether the court should have held that Hartzheim's action is the proper action in which the liabilities of officers and stockholders are to be enforced. This question seems to be satisfactorily answered in accordance with the ruling of the circuit court by the case of Hurlbut v. Marshall, 62 Wis. 590, 22 N. W. 852. That was originally brought by a creditor against an insolvent banking corporation alone, seeking simply to administer the assets of the bank. It was plainly brought under sections 3218, 3219, Rev. St. 1878. Afterwards, however, the complaint was amended,

case

the officers and stockholders of the bank were made parties, and apt allegations were made seeking to charge the stockholders and officers with various statutory and common-law liabilities; and upon demurrer this court said, in substance, that the action so commenced was the exclusive action, and that all creditors must seek their remedy therein, and that the various liabilities of officers and stockholders must be enforced in this one suit. This conclusion is more or less strongly sup ported, also, by the conclusions reached in the following cases in this court, viz.: Ballin v. Loeb, 78 Wis. 404, 47 N. W. 516; Ford v. Bank, 87 Wis. 563, 58 N. W. 766; and In re Oshkosh Mut. Fire Ins. Co., 77 Wis. 366, 46 N. W. 441. The amended complaint in the case of Marsden against the bank was almost identical with the first complaint in the case of Hurlbut v. Marshall. It showed that it' was brought by a creditor as well as a stockholder of the bank, and it sought to administer and wind up the affairs of the bank. It did not contain a distinct allegation that it was brought on behalf of all creditors, but it prayed that all the creditors might come in and be made parties, and receive dividends; and, moreover, being an action under sections 3218 and 3219, supra, it was necessarily for the benefit of all the creditors who chose to come in and prove their claims, and could not be otherwise. Now, although, when Hartzheim commenced his action, no officers or stockholders had yet been made defendants in the Marsden action, nor had they been charged with any liability, still the action was one in which such additional defendants could be brought in, and their liability ascertained and enforced, at any time when it appeared to be necessary; and this might be done on motion of a creditor who had become a party to the action by proving his claim, and even after judgment against the corporation. Rev. St. Wis. 1898, §§ 3221, 3222. Thus, the action of Marsden against the bank was at the time of the commencement of the Hartzheim action potentially an action to enforce all the obligations of the officers and stockholders to the creditors which may be enforced by a creditors' action in equity, and it was undoubtedly the proper course for a creditor to come into that action to obtain his relief. Furthermore, a receiver had already been appointed to the Marsden action, and was in possession of the property of the bank, and was administering it. To hold that Hartzheim might begin and maintain another action to reach the same results which might be readily reached in the action already pending would be to add confusion to that which was already sufficiently confused. One action to enforce the various liabilities of officers and stockholders will present difficulties amply sufficient to test the learning and business ability of the court and its officers. The remarks made by Chief Justice Cole in the case of In re Oshkosh Mut. Fire Ins. Co., 77 Wis. 366, 46 N. W. 441, are quite to the point here.

He says on pages 369 and 370, 77 Wis., and page 442, 46 N. W.: "Different suits brought to secure the same ends are always considered objectionable. It would be especially so in this litigation, to have different receivers appointed to take charge of the same estate, dispute and wrangle over its control, disposition, and management, and increase the expense and cost of settling it, for no useful purpose whatever. Confusion and conflict would inevitably arise between the receivers in the transaction and adjustment of the affairs of the corporation, and this is to be avoided, if possible." The order appealed from provides that Hartzheim be permitted to come into the Gager action as a party, with all the rights and privileges of a party. So his rights are fully preserved. The order of the circuit court, enjoining the prosecution of the Hartz'heim action, and requiring all the creditors to come into the Gager action to seek their remedies, was plainly right. Order affirmed.

1. Error in substituting plaintiffs is not subject to review on demurrer to the complaint. 2. Error in making a substitution of plaintiffs does not go to their legal capacity to sue.

3. Creditors of an insolvent bank petitioned to be substituted as plaintiffs, instead of a stockholder who had commenced an action for the appointment of a receiver; alleging that the bank's money had been wasted through fraudulent practices of the directors, and that plaintiff was one of the guilty parties. Held, that the creditors were competent to prosecute such an action.

4. An objection that plaintiff has no legal "capacity to sue" implies legal disability, and does not go to the cause of the action.

5. Rev. St. 1878, § 3218, provides that, when a banking corporation shall become insolvent, the court may restrain it from transacting business; section 3219 provides that the injunction may issue at the commencement of any action by any creditor or stockholder; and section 3227 provides that when an action shall be commenced under any of the provisions of the chapter against a corporation, its officers or stockholders, the court may, on application of either party, restrain all proceedings by any other creditor. Held, that but one winding-up suit is proper, and in an action by a creditor to close the business of an insolvent bank the statutory liability of stockholders, the liability of directors, officers, and stockholders for the indebtedness of the bank, and the liability of the directors or other officers to make good any money squandered through their fraud or negligence, may be enforced; the several liabilities not being different causes of action.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by C. M. Gager and others against Henry Marsden, impleaded with the Bank of Edgerton and others. From an order overruling defendant Marsden's demurrer to the complaint, he appeals. Affirmed.

Henry Marsden, as a stockholder of the defendant banking corporation, commenced, as sole plaintiff, an action against such corporation, as sole defendant, for the appointment of a receiver and settlement of its affairs because it was insolvent. A receiver was appointed with the usual powers in winding-up proceedings, who duly qualified and took charge of the property of the corporation. Later the complaint was amended so that Marsden appeared as a stockholder and creditor as well. It contained the necessary allegations in an action to dissolve and fully settle the affairs of an insolvent corporation, and a prayer for appropriate relief in such cases. Later C. M. Gager and other creditors of the bank, who now appear as plaintiffs, petitioned the court, setting forth their creditor relations to the corporation and facts tending to show that the directors of the bank negligently permitted the money deposited therein 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 false, were attested as true by directors for the purpose of deceiving persons into depositing money with the bank, and that on the faith of such representations the petitioners so deposited money; that with knowledge of the insolvency of the bank dividends were paid to stockholders; that the capital stock was not fully paid; that through fraudulent practices of the directors the entire capital and surplus of the bank, and a large part of the money deposited by stockholders, had been stolen, wasted and lost; that plaintiff Marsden was one of the guilty parties, and all the stockholders and officers of the bank should be made parties to the action to the end that the liabilities of each might be determined and enforced, and all the affairs of the corporation wound up. The prayer was that petitioners be substituted as plaintiffs in place of Marsden, that he be made a defendant, that the officers and stockholders of the bank should all be made parties defendant, and that the complaint be amended, setting forth the facts mentioned in the petition, with appropriate prayer for relief. The petition was granted and an order entered accordingly, and enjoining proceedings on the part of other creditors against the defendants till the further order of the court. The complaint was amended accordingly, to which Marsden, as defendant, demurred, first, for want of legal capacity of plaintiffs to sue; second, for defect of parties plaintiff; third, for defect of parties defendant; fourth, for the Improper joinder of several causes of action; fifth, for want of facts stated sufficient to constitute a cause of action against Marsden. The demurrer was overruled and Marsden appealed.

Fethers, Jeffris, Fifield & Mouat and E. D. McGowan, for appellant. Sutherland & Nolan and Olin & Butler, for respondents.