Anderson v. Johnson

82 N.W. 177, 106 Wis. 218, 1900 Wisc. LEXIS 50

• Court: Wisconsin Supreme Court
• Decided: March 20, 1900
• Status: Published

Opinion

Winslow, J.

The testimony was undisputed in this case that the plaintiffs purchased the assets of the insolvent Wagg-Anderson Company, including the note in suit, at receiver’s sale, and paid value for them, and that the sale was confirmed by the court. Whether they intended to place such assets in the hands of A. J. Anderson to manage as his own while retaining merely nominal title themselves, or made •the purchase with a view to allow him to reap the benefit therefrom, are questions which might possibly be material to creditors of the Wagg-Anderson Woolen Company, or to creditors of A. J. Anderson, but it is not perceived how they can be material at all to these defendants, who belong in neither of those classes. The transfer was certainly perfectly good so far as the debtors of the Wagg-Anderson Company are concerned.

The only question of any difficulty in the case is the question whether the counterclaim was sufficient. If any cause of action be set forth in the counterclaim at all, it is evidently one for malicious abuse of legal process. Assuming {but not deciding) that such a cause of action existing against the plaintiffs is properly pleadable as a counterclaim in this case, still we think that there are not sufficient allegations showing the plaintiffs to be responsible for the alleged wrong. The counterclaim shows distinctly'that A. J. Anderson was the man who committed all the overt acts, and it is attempted to connect the plaintiffs therewith by allegations of conspiracy. We think, however, that these allegations clearly fall short of alleging that the plaintiffs at any time conspired with A. J. Anderson to injure the defendants by abusing the process of the court. Fairly and reasonably construed, the conspiracy alleged is a conspiracy to procure the title of the corporate assets of the defunct corporation in the name of the plaintiffs, but for the real benefit of A. J. Anderson. This is the sum and substance of the conspiracy as first charged, and afterwards referred to as “ the same plan for the benefit of A. J. Anderson.” The acts complained of are no part of such a conspiracy. Had the defendants desired to charge that the plaintiffs conspired with A. J. Anderson to injure and oppress the defendants by the malicious use of the process of the court, such an allegation would have been easy to make; but it seems to have been industriously avoided. The charge that the plaintiffs permitted A. J. Anderson to “ use their names in all of said matters ” is unavailing, because the judgment upon cognovit was not entered in their names, but in the name of the Wagg-Anderson Woolen Company, and the execution must have followed the j udgment. Upon this ground, if upon no other, we think that the counterclaim was insufficient.

By the Gourt.— Judgment affirmed.