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MARSHALL, J. (after stating the facts). In support of the objection to the complaint that plaintiffs have not legal capacity to sue, appellant's counsel say the court erred in substituting Gager and his associates as plaintiffs in place of Marsden. It is a sufficient answer to that suggestion to say that mere error of the court in making the substitution of plaintiffs, if there be such error, and none is perceived, does not go to legal capacity of the plaintiffs to sue. The order of the court substituting the present plaintiffs for Marsden, stands as the law of the case till reversed or set aside in some proper proceedings. It is not subject to review on demurrer to the complaint. The complaint stands as if the action were originally commenced by the present plaintiffs against the present defendants. It cannot be seriously contended but that plaintiffs, as creditors of the bank, were competent to institute and prosecute such an action, and that is the only subject covered by the demurrer on the ground of want of legal capacity to sue. Murray v. McGarigle, 69 Wis. 483, 34 N. W. 522.
In support of the demurrer that several causes of action were improperly joined, counsel for appellant ingeniously argue that the several provisions of chapter 140, Rev. St. 1878, relating to the winding up of corporations and distributing their assets, and enforcing the liability of stockholders and officers, contemplate several distinct actions on separate and distinct causes of action to enforce distinct species of liability, and they argue with much earnestness and learning that the law governing the subject is in much confusion and uncertainty, and appeal to the court to clear that up and make the practice plain to the bench and bar in this very important field of litigation. If all uncertainties in regard to a subject involving such a diversity of interests can be removed, precluding all opportunity for different legal minds to come to different conclusions, "'tis a consummation devoutly to be wished;" but human experience does not leave room for hope that the desired end can be reached. The law will probably never be settled with sufficient definiteness to prevent learned counsel, stimulated to exertion by new situations or old but unfamiliar situations, from suggesting and urging upon the attention of the court over and over again old questions which, in the light of some unusual hardship appear, to those whose desired course is barred thereby, to have been settled wrong or not to cover at all the particular environment in which they find themselves. It was supposed that Hurlbut v. Marshall, 62 Wis. 590, 22 N. W. 852, determined for all time in this court, and for all courts of this state having to do with the subject, that but one windingup suit to settle the affairs of a corporation is proper, and that in such suit all the rights and all the liabilities of creditors, officers and stockholders are to be worked out. This court so understood it then and has never
departed from that view, as indicated in the opinion of Mr. Justice Winslow in Gager v. Bank (decided herewith) 77 N. W. 920. The careful practitioner hardly need go astray because of cases where only a part of the relief obtainable in a winding-up proceeding was sought and which were sustained for that particular relief. Gianella v. Bigelow, 96 Wis. 185, 71 N. W. 111, Booth v. Dear, 96 Wis. 516, 71 N. W. 816, and Williams v. Meloy, 97 Wis. 561, 73 N. W. 40, were solely to enforce the personal statutory liability of stockholders, sustained as such and properly so, but in perfect harmony with Hurlbut v. Marshall, supra, that the same liability, and all other liability of stockholders and officers of corporations may be enforced as part of the relief obtainable in a general winding-up suit. Gores v. Day, 99 Wis. 276, 74 N. W. 787, and South Bend Chilled-Plow Co. v. George C. Cribb Co., 97 Wis. 230, 72 N. W. 749, were instituted by creditors to enforce the liability of corporate officers to make good money lost through their fraud and culpable negligence, and it was said, following literally the words of section 3239, Rev. St. 1878, that such liability could be enforced in an action by creditors, as was there attempted. But there is nothing in the opinions in those cases warranting the contention that the remedy cannot also be administered in a general winding-up suit. The section referred to expressly provides that the jurisdiction of the court over the subject referred to therein shall be exercised in an action prosecuted by the attorney general in the name of the state or by any creditor of the corporation, or by any director, trustee or officer thereof having a general supervision of its affairs, as the case may require or the court may direct. Whether the action be brought by a creditor under section 3219 to enjoin the officers of the corporation, or under section 3223 to charge directors, trustees or other officers or stockholders of a corporation on account of a liability created by law, or under section 3239 to enforce the liability under section 3237, or the common-law liability to make good money negligently or fraudulently lost or wasted, it will readily be seen makes no difference with the power of the court to broaden the action out so as to administer all the relief obtainable under all the sections mentioned, and others contained in chapter 140, if the matter be looked at considerately, even as an original proposition depending on the plain wording of the statutes. A creditor may bring an action in either case. It is said in section 3239, that the jurisdiction of the court over the subjects mentioned in section 3237 shall be enforced in a creditors' action as well as in an action brought by the attorney general or by an officer of the corporation; and it is said in section 3227 that whenever an action shall be commenced under any of the provisions of chapter 140, against a corporation, its officers or stockholders, the court may, on the application of
either party, at any stage of the proceeding, restrain all proceedings by any other creditor against the defendants in such action. The fact that when an action under chapter 140 is brought to enforce the liability of stockholders or officers, all other actions by creditors may be enjoined, carries with it as plainly as if expressed, that all liabilities are enforceable in the one action that may be enforced in an action brought under any one of the sections. The legislative scheme is that the whole subject of winding up a corporation, settling with its creditors and distributing its assets, shall be brought before the court as one cause of action. The various liabilities enforceable in such action are not separate causes of action, but are mere incidents or parts of one subject or cause of action: the settlement of the corporate affairs. In an equitable action many matters are often adjudicated which would form the subject of an independent action, either at the suit of plaintiff against one or more of the defendants, or between different defendants, yet are properly brought before the court as germane to the subject of the action stated in the complaint. They are not separate causes of action, but incidents of a single subject or cause of action forming the purpose of the suit.
The foregoing is in accordance with the plain scheme of the Code. It was designed to preserve and make more perfect by new forms the method for the settlement in one action, denominated a "civil action," of all the rights of a party plaintiff, or parties plaintiff united in interest in the subject thereof, and the rights of adverse parties, both as between them and the plaintiff or plaintiffs, or some of them, and between themselves, not only as to the subject of the action but the subjects germane thereto. Section 2602, Rev. St. 1878, says, "All parties having an interest in the subject of the action and in obtaining the relief demanded may be joined as plaintiffs," unless otherwise provided. Section 2603 provides that "any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein." Section 2604 says, the parties to the action who are united in interest must be joined as plaintiffs, except they refuse, when such as refuse may be joined as defendants. Section 2610 provides that the court may determine any controversy between the parties before it when it can be done without prejudice to the rights of others or by saving their rights, and may bring in all parties necessary to such determination. Section 2648 says that the only pleading on the part of the defendant, aside from a demurrer, is an answer; but section 2655 provides that the answer, in addition to putting the allegations of the complaint in issue, may state any new matter constituting a defense or counterclaim, and it is further provided
that the plaintiff may reply to that part of the answer constituting a counterclaim. Section 2883, as it stood up to the time of the late revision, which has not in fact changed it, authorized judgment for or against one or more of several defendants, and determining the ultimate rights of parties on each side as between themselves, and granting to any defendant any affirmative relief to which he may be entitled. The system is complete, as said in Kollock v. Scribner, 98 Wis. 104, 73 N. W. 776, enabling the court in a single action, by the presentation of issues made up by the complaint, answer and reply, to take within its jurisdiction a single subject or controversy, and all parties interested therein adverse to the plaintiffs, and all necessary to be before the court for their due protection and for the determination of the entire controversy, including such matters as may be germane to the primary subject of the action.
Considering the sections of the Code above referred to with the sections of chapter 140 relating to the enforcement of rights respecting corporations, their officers or stockholders, it will readily be seen how perfectly they are adapted to the formation and trial of all the issues necessary to a full determination and perfect protection of all the rights of each and all the parties in an action that may be properly brought before the court therein, and that no other method exists or can be suggested that will accomplish that result. The whole scheme appears to be free from confusion, free from uncertainty, and free from all difficulty even if it were not settled by prior adjudications of the court.
If a suit be brought by a creditor under sections 3218 and 3219, to close up the entire business of a corporation, the statutory liability of stockholders, and the liability of directors and officers and stockholders of the corporation for the payment of the indebtedness of the corporation in any event or contingency and the liability of the directors, managers, trustees and other officers of the corporation to make good any money or property squandered or lost through their fraud or negligence, are all germane to the subject of the action, therefore may all be properly brought in as parts of the one controversy. The various liabilities in such an event do not constitute separate causes of action. There is but one cause of action, that for the closing up of the business of the corporation; the other matters are germane to that cause and necessary incidents of it. If an action be commenced to charge the directors, trustees or other officers or stockholders of a corporation on account of any liability created by law, mentioned in section 3223, Rev. St. 1878. then under section 3224 the court is required to proceed as in other cases, and if it appear that the corporation is insolvent, or it be claimed that such is the fact, the court is required to ascertain and enforce the liabilities of directors, trustees and other officers, substantially the same as in an action to clos
up the business of the corporation, and the liabilities of all the officers and directors and stockholders to the corporation, in which the creditors are interested, are germane thereto and necessarily incident to a full determination of the proceedings; and if an action be brought by a creditor to enforce the liability of directors or other officers or a corporation to make good money or property fraudulently lost or wasted by them, the interest of the prosecuting creditor or creditors being contingent on the necessity of enforcing such liability in order to secure payment of their claims against the corporation, all the liabilities of stockholders and directors, and the collection and distribution of the assets of the corporation, are germane to that action, substantially the same as in an action for closing up the entire business of the corporation. So in either case there is really but one subject or cause of action. The test of whether there is more than one cause of action stated in a complaint is not whether there are different kinds of relief prayed for, or objects sought, but whether there is more than one primary right sought to be enforced, or one subject or controversy presented for adjudication.
Further discussion of this subject is unnecessary. It has been very plainly covered in the opinion of Mr. Justice Winslow in the case decided herewith and before referred to, which, with the foregoing, decides all the questions that call for special mention in deciding this case, and all that are argued in appellant's brief. The demurrer was properly overruled.
The order of the circuit court is affirmed.
GREEN V. MORSE et al. (Supreme Court of Nebraska. Jan. 5, 1899. COURTS-ADJOURNMENT-REVOCATION OF ORDERAPPEAL-PRESUMPTIONS - RIGHTS OF LITIGANTS -FORCIBLE ENTRY AND DETAINER-INJUNCTION -JUSTICE OF THE PEACE-JURISDICTION-SHERIFF'S DEED-Evidence.
1. An adjournment of court to a subsequent day in the term is merely an intermission, and neither adjourns the term nor deprives the judges of control of the proceedings.
2. Notwithstanding such an order, the court may revoke it, and reconvene before the time fixed in the order of adjournment.
3. Where the record shows an order adjourning to a future day in the term, and judicial proceedings carried on in the interval, it will be presumed, in favor of regularity, that there has been a reconvention, and an express or implied vacation of the order of adjournment.
4. The rights of litigants under such circumstances, who have been prejudiced by reliance upon the order of adjournment, present questions not involved in this case.
5. An action in forcible entry and detainer lies in favor of a purchaser at judicial sale to recover possession of the premises purchased, when the judgment debtor was in possession at the time the judgment or decree was rendered whereunder the sale was made.
6. The remedy by forcible entry and detainer and by writ of assistance in the original case are concurrent, and an injunction will not be allowed to restrain the prosecution of a case in
forcible detainer merely because the district court might proceed by writ of assistance.
7. A justice of the peace or county court is not ousted of jurisdiction in a forcible entry and detainer case by the mere averment in that case or elsewhere that it involves the question of title. It has jurisdiction to proceed until the evidence discloses such fact.
8. A sheriff's or master's. deed, executed after confirmation of sale, and before supersedeas of that order, and delivered after judgment of affirmance and filing of a mandate, is regular.
9. A pleading is not complete evidence, in favor of the party whose pleading it is, of the facts averred therein.
(Syllabus by the Court.)
Appeal from district court, Douglas county; Scott, Judge.
Bill by one Green against Morse and others. From a decree for plaintiff, defendants appeal. Reversed.
Geo. E. Pritchett, for appellants. Wright & Thomas, for appellee.
IRVINE, C. In this case-an appeal from an order granting a perpetual injunctionthere is a motion to dismiss the appeal, based on the ground that the order appealed from was made in vacation, and is therefore void. It is said that the October term of the district court of Douglas county was adjourned October 3, 1898, until November 1, 1898, and that the decree was rendered October 4th, during the intermission. At the bar the question argued was whether, where there are seven judges in a district, concurrently holding the district court of a county, six may make an order of adjournment, which will preclude the seventh from thereafter holding court during the allotted period of the term. An inspection of the record discloses no state of affairs raising precisely that question. What does appear is that the October term was begun and held October 3d; that on that day an order, apparently regular, made "by the court," and signed by six judges, was entered, adjourning the term until the 1st day of November. It then appears that the decree appealed from was entered October 4th by the one judge who did not sign the order of adjournment. The record does not disclose that it contains all the orders affecting the adjournment and holding of the court. There is a marked distinction between an adjournment sine die of a term of court and those intermissions which inevitably occur during a term. A court has the inherent power during the term of suspending business, as occasion may require, from one hour or one day to another. In this respect there is no difference between an adjournment from one day to the next, and adjournment to a more distant day. In either case the term continues, and while, during the intermission, the functions of the court are for some purposes suspended, still the court remains in existence, and it is still term time. The judges do not, by such an order, lose all power of control over the sessions, and may revoke the order of adjournment, and reconvene before the time first fixed. Bowen v. Stewart, 128 Ind. 507, 26
N. E. 168, and 28 N. E. 73; Wharton v. Sims, 88 Ga. 617, 15 S. E. 771; Cole Co. v. Dallmeyer, 101 Mo. 57, 13 S. W. 687. While this record discloses an apparently regular order of adjournment until November 1st, it also discloses the conduct of judicial business October 4th; and it must be presumed that there had been a reconvention of the court, and a rescission of the order of adjournment; whether by regular order vacating the former, or by action equivalent thereto, is not material. Clough v. State, 7 Neb. 320. The motion to dismiss the appeal must therefore be overruled.
In what has been said it has not been the intention to convey any inference whatever as to what would be the rights of litigants who, relying on the order of adjournment, had absented themselves for want of notice to the reconvention of the court, or of those who might, although with notice, be unprepared for a trial thus brought on prior to the time on which they might perhaps rely as the earliest when trial could be demanded. This record does not disclose that there was any surprise. Both parties were present, and no objection appears to going to trial at the time trial was had.
We are thus brought to the merits of the appeal. The case was a proceeding in foreclosure. A decree was rendered, a stay taken, the land then sold, the sale confirmed, and an appeal taken by the defendant from the order of confirmation. By this court the order of confirmation was affirmed.1 A mandate was sent to the district court, commanding the enforcement of the order. A deed was issued to the purchaser, who demanded possession, and possession was refused. The purchaser
then instituted an action in forcible entry and detainer for the recovery of possession of the property. The defendant then filed in the original case a supplemental petition, asking an injunction to restrain the purchaser from prosecuting the forcible entry and detainer case, and from interfering with defendant's possession. It is the order making a temporary injunction of that character perpetual that is appealed from.
We are not favored with a brief in defense of the order of the district court, and we are decidedly of the opinion that it is entirely indefensible. The supplemental petition, aside from reciting the proceedings in the case, alleges that the cause is still pending in the district court to carry out the mandate; that the plaintiff has filed "a pretended deed," dated and executed while the order of confirmation was superseded by the former appeal; that the property is defendant's homestead; that the forcible entry and detainer case will necessarily raise the question of title; and that the court where that is depending is therefore without jurisdiction. These averments show no right to relief by injunction. The Code of Civil Procedure
1 Without opinion.
(section 1020) expressly makes the remedy of forcible entry and detainer available “in sales of real estate on executions, orders or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which such sale was made." It was shown that such was the case here. Where that remedy is given, that and a writ of assistance are concurrent remedies. Kessinger v. Whittaker, 82 Ill. 22. The pursuit of the former did not oust the district court of whatever jurisdietion it had retained, and was not an usurpation of that jurisdiction. Nor were the forcible entry and detainer proceedings without jurisdiction because of the averment in the supplemental petition here that they would require an inquiry into the title of land. Even an answer to that effect in the forcible entry suit would not oust the jurisdiction. The court might still proceed until the evidence should disclose that the question involved was one of title. Pettit v. Black, 13 Neb. 142, 12 N. W. 841; Lipp v. Hunt, 25 Neb. 91, 41 N. W. 143. The averment that the deed to plaintiff was executed while the order of confirmation stood superseded, even if it could give or contribute to the right of an injunction, was not sustained. The answer averred that the deed had been executed before the supersedeas was effected, and that it had not been delivered until after affirmance and the receipt of the mandate. There was no reply. and this averment therefore stood admitted. Moreover, it was proved at the trial. The deed was therefore both executed and delivered while the judgment was enforceable. Of course, the averment in the supplemental petition that the premises constituted a homestead was of no force whatever to prevent the carrying into effect of a decree unappealed from, ordering the sale of the property, and of an order of confirmation following such sale.
It may further be remarked that the only evidence the defendant offered to prove the averments of the supplemental petition was that somewhat remarkable document itself. A pleading in a cause is not competent evidence to prove the facts therein averred. The judgment of the district court is reversed. the perpetual and temporary injunctions both dissolved, and the supplemental petition dismissed.
MOON et al. v. MILLS. (Supreme Court of Michigan. Jan. 20, 1899.) EASEMENT-PRESCRIPTION.
1. The owner of property abutting on an alley 12 feet wide had a perpetual right of way over it, in common with other abutters, and maintained an outside stairway and platform over the alley, 35 inches wide, which did not incommode the other abutters. The alley was never dedicated to the public by any plat. Held that he could not be compelled to remove the ob structions.
2. Prescriptive rights may be acquired in an alley, though it were laid out as such.
Appeal from circuit court, Livingston county, in chancery; Stearns F. Smith, Judge.
Bill by Orrin N. Moon and Cecelia W. Moon against Wesley J. Mills. There was a judgment for defendant, and complainants appeal. Affirmed.
Judd Yelland, for appellants. Louis E. Howlett, W. P. Van Winkle, and W. H. S. Wood, for appellee.
LONG, J. This bill was filed to compel the removal of a certain platform, stairway, and water-closet from and out of an alley situate between the premises of the complainants and the defendant. The alley is 12 feet wide, and 160 feet long, extending from the street to another alley at right angles with it. The complainants' premises, which are 24 feet in width, abut in the rear upon this first alley, and extend through to East street, upon which their store fronts. The defendant's premises, upon which there are three brick stores, face on Main street, and extend to the alley in the rear. The obstruction complained of is a platform 29 feet 10 inches in length, extending partly across the rear end of the second story of defendant's buildings. Leading down from the platform into the alley is a stairway about 35 inches in width. The platform is held in place by brackets fast. ened against the wall, 12 feet from the ground. The water-closet is beneath the stairway, and not extending so far into the alley as the stairway itself. The stairway and platform are used for the purpose of reaching the second story of defendant's buildings, these stories being used as offices, living rooms, and dressmaking parlors. The defendant purchased his premises from the heirs of Almon Whipple, in 1880 and 1881. The alley in question also belonged to that estate. The deeds to the defendant, after describing the property, recite: "Together with a perpetual right of way, twelve feet wide, parallel with Main street, extending from Clinton street south to the alley on lot number thirty-three of Condry's addition, running parallel with Grand River street, which right of way is to be used in common by the parties of the second part, their heirs and assigns, and the owners, their heirs and assigns, of the several lots and parcels of land lying west and bordering on the above-described alleys, according to the recorded plat," etc. Soon after the defendant purchased his premises, these three store buildings were erected, and three different stairways built in the alley leading to the upper rooms of the stores. Fires occurred in the buildings some time in 1887, when the three stairways were rebuilt. No objection seems to have been made to these obstructions by any one until the complainants purchased their property, on the opposite side of the alley, in 1897. While complainants were building their property, defendant took down the three
stairways, and erected the platform and one stairway instead. No objection was made by complainants to these changes while they were being made. The case was heard in open court, and the bill dismissed. Complainants appeal.
We think the testimony shows conclusively that the complainants are not injured in any manner by these obstructions. The land in this alley was never dedicated to the public by any plat, and the only ones interested in the alley are those whose property abuts thereon. Under the deeds to the defendant, he has a perpetual right of way in the alley. Any encroachment must become a serious inconvenience to the parties having the right of way before it becomes a nuisance. The claim of complainants is that, as matter of law, they are entitled in a court of equity to a removal, though they show no equitable reasons why it should be so ordered. This contention cannot be sustained. The true rule is that one of the owners in common of a way, who erects an obstruction on his part, beneficial to himself, and which does not tend to incommode one who has an equal right, cannot be compelled to remove such obstruction. 19 Am. & Eng. Enc. Law, p. 113.
There is another reason which prevents the complainants from sustaining their claim. The defendant obtained his deeds in 1880 and 1881, and in the following year erected his buildings, and from that time to the present has occupied the alley by the stairways erected in the alley in the rear of these buildings. There has been a continued, uninterrupted use of the alley by the stairways, under a claim of right, for more than 17 years prior to the time of filing the present bill. Prescriptive rights may be acquired in an alley, though it were laid out as such. Vier v. City of Detroit (Mich.) 70 N. W. 139. Title may be acquired to a public highway by adverse possession. Village of Essexville v. Emery, 90 Mich. 183, 51 N. W. 204. The court below was correct in dismissing complainants' bill. That decree will be affirmed, with costs. The other justices concurred.
CRIBBS v. YORE. (Supreme Court of Michigan. Jan. 20, 1899.) SLANDER-DAMAGES-INJURIES TO FEELINGS.
Pub. Acts 1895, No. 216, § 1, which provides that, in actions for slander, only actual damages to property, business, or feelings are recoverable, has not abrogated the common-law rule that damages for injuries to feelings are recoverable as general damages, without being specially pleaded or proved.
Error to circuit court, Berrien county; Orville W. Coolidge, Judge.
Action by Eugene W. Cribbs against Patrick Yore. There was a judgment for plaintiff, and defendant prosecuted error. Affirmed.
W. C. Hicks and O'Hara & O'Hara, for appellant. N. A. Hamilton, for appellee.