Cassoday, J.
The order of July 23, 1892, striking out the name of one of the plaintiffs, was made by the court. Neither its validity nor its regularity is questioned. It is claimed that the defendants are entitled to a judgment for costs against the person whose name was so stricken out; but that is a matter which should have been determined, if [219]*219at all, when the order of July 23,1892, was made, and then embraced in that order. This is an equity case, and such matters must necessarily rest in the sound discretion of the trial court. Certainly, we should not disturb the order from which this appeal is taken merely because the order of July 23, 1892, failed to give such costs.
It is contended that the order made by the circuit judge at chambers, February 4, 1893, adding new parties plaintiff, as mentioned in the foregoing statement, was without authority and should have been set aside. The reason given for such contention is that secs. 2610, 2611, 2830, E. S., only authorize the “court” to make such order, aDd that another section of the statutes provides that, wherever the “ statutes authorize an order or proceeding to be made or taken by the court, it must be done by the court in session.” S. & B. Ann. Stats, sec. 2815. The refusal of the court, by the order of October 4, 1893, to set aside that order, in effect continued the same as the order of the circuit judge at chambers, without adopting it as the order of the court. Balkins v. Baldwin, 84 Wis. 212. The order of February 4, 1893, being made by a judge at chambers, was not appealable. Hubbell v. McCourt, 44 Wis. 584; Whereatt v. Ellis, 68 Wis. 70; State v. Brownell, 80 Wis. 563. It follows from these adjudications that, if such chamber order is really prejudicial to these appellants, then the order refusing to set it aside should be reversed, as in Balkins v. Baldwin, supra. On the contrary, if that chamber order is in no way prejudicial to the appellants, then they are not “ aggrieved ” by the order refusing to set it aside; and, if they are not “ aggrieved ” thereby, then they are in no position to invoke the appellate jurisdiction of this court to review the same. R. S. sec. 3048; McGregor v. Pearson, 51 Wis. 122; Eureka S. H. Co. v. Sloteman, 67 Wis. 126; Ackley v. Vilas, 79 Wis. 160; Shabanaw v. C. C. Thompson & Walkup Co. 80 Wis. 623. The important question for [220]*220determination, therefore, is whether the appellants are so-aggrieved.
The action is brought under a statute which declares;
“ The stockholders of every corporation, other than railroad corporations, shall be personally liable to an amount equal to the stock owned by them respectively in such corporation for all debts which may be due and owing to its clerks, servants and laborers for services performed for such corporation, but not exceeding six months service in any one case.” R. S. sec. 1769. The new plaintiffs, as well as the original plaintiffs, respectively, either performed services for the corporation as such clerks, servants, and laborers, or were the assignees and owners of claims for services performed for the corporation by such clerks, servants, and laborers. There can be no question but that such claims are assignable. Day v. Vinson, 78 Wis. 198. This court has repeatedly held, in effect, that an action to enforce a statutory liability against the stockholders of an insolvent corporation should be in equity and on behalf of one or more plaintiffs and all other creditors having similar claims, against all such stockholders, and also against the corporation unless it has been dissolved or its assets wholly exhausted. Sleeper v. Goodwin, 67 Wis. 588, and cases there cited. This rule was sanctioned by this court as early as Coleman v. White, 14 Wis. 700. It seems to be in harmony with the statute which declares; “When the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole” R. S. sec. 2604. This statute has been construed as merely re-enacting the rules which prevailed in equity, and which otherwise might have been held to be abolished by the Code. Barb. Parties, 50, 51. It is there said: “ When the question involved is one of common or general interest, the action may be [221]*221brought by one or more for tbe benefit of all who have such common or general interest, without showing that the parties are very numerous or that it would be impracticable to bring them all before the court.” This rule applies in equity to a variety of cases. 1 Van Santv. Eq. Pr. 76; McKinzie v. L'Amoureux, 11 Barb. 516; Hammond v. H. R. I. & M. Co. 20 Barb. 378. Whenever there are numerous persons merely having “ a common or general interest,” then they may join as parties plaintiff; but if they are all “ united in interest,” then they must so join. Ibid. In the case at bar, it is manifest that the several claimants merely have such “ common or general interest.”
It is said by a very learned author on Code Pleading:
■“ There are cases in whiqh a suit cannot be maintained in the name of the judgment creditor alone, but must be for himself and for the benefit of all other creditors who may come in, etc. This is applicable to all cases where, by statute or otherwise, no preference can be given, but the fund is applicable to all creditors jpro rata, as in cases of proceedings against insolvent manufacturing companies or other insolvent corporations.” 2 Van Santv. Eq. Pr. 134. The same learned author says: “ When the complaint is on behalf of the creditor who is plaintiff, and all others who may come in and contribute, etc., such other creditors are allowed to come in at any time, either before or after judgment, until the fund is actually distributed and paid out.” Id. 154. In Wilder v. Keeler, 3 Paige, 164, it was held that: “Under a decree upon a creditor’s bill, for the creditors to come in and prove their demands, it is a matter of course to permit a creditor to come in and prove his debt at any time before the fund is actually distributed and paid out, upon his showing a sufficient excuse for not coming in before the master, and upon payment of all costs produced by the delay.” The fact that such action is commenced in behalf of the parties named as plaintiffs, and others not named, [222]*222does not prevent the plaintiffs who are named from receiving payment or satisfaction of their respective claims, or discontinuing their suit at any time before there has been a decree therein for the benefit of those named and the others not named. Innes v. Lansing, 7 Paige, 583. In that case it was expressly held that: “ The filing of a bill by one creditor in behalf of himself and others will not prevent another creditor from filing a similar bill previous to a decree in the first suit.
Free access — add to your briefcase to read the full text and ask questions with AI
Cassoday, J.
The order of July 23, 1892, striking out the name of one of the plaintiffs, was made by the court. Neither its validity nor its regularity is questioned. It is claimed that the defendants are entitled to a judgment for costs against the person whose name was so stricken out; but that is a matter which should have been determined, if [219]*219at all, when the order of July 23,1892, was made, and then embraced in that order. This is an equity case, and such matters must necessarily rest in the sound discretion of the trial court. Certainly, we should not disturb the order from which this appeal is taken merely because the order of July 23, 1892, failed to give such costs.
It is contended that the order made by the circuit judge at chambers, February 4, 1893, adding new parties plaintiff, as mentioned in the foregoing statement, was without authority and should have been set aside. The reason given for such contention is that secs. 2610, 2611, 2830, E. S., only authorize the “court” to make such order, aDd that another section of the statutes provides that, wherever the “ statutes authorize an order or proceeding to be made or taken by the court, it must be done by the court in session.” S. & B. Ann. Stats, sec. 2815. The refusal of the court, by the order of October 4, 1893, to set aside that order, in effect continued the same as the order of the circuit judge at chambers, without adopting it as the order of the court. Balkins v. Baldwin, 84 Wis. 212. The order of February 4, 1893, being made by a judge at chambers, was not appealable. Hubbell v. McCourt, 44 Wis. 584; Whereatt v. Ellis, 68 Wis. 70; State v. Brownell, 80 Wis. 563. It follows from these adjudications that, if such chamber order is really prejudicial to these appellants, then the order refusing to set it aside should be reversed, as in Balkins v. Baldwin, supra. On the contrary, if that chamber order is in no way prejudicial to the appellants, then they are not “ aggrieved ” by the order refusing to set it aside; and, if they are not “ aggrieved ” thereby, then they are in no position to invoke the appellate jurisdiction of this court to review the same. R. S. sec. 3048; McGregor v. Pearson, 51 Wis. 122; Eureka S. H. Co. v. Sloteman, 67 Wis. 126; Ackley v. Vilas, 79 Wis. 160; Shabanaw v. C. C. Thompson & Walkup Co. 80 Wis. 623. The important question for [220]*220determination, therefore, is whether the appellants are so-aggrieved.
The action is brought under a statute which declares;
“ The stockholders of every corporation, other than railroad corporations, shall be personally liable to an amount equal to the stock owned by them respectively in such corporation for all debts which may be due and owing to its clerks, servants and laborers for services performed for such corporation, but not exceeding six months service in any one case.” R. S. sec. 1769. The new plaintiffs, as well as the original plaintiffs, respectively, either performed services for the corporation as such clerks, servants, and laborers, or were the assignees and owners of claims for services performed for the corporation by such clerks, servants, and laborers. There can be no question but that such claims are assignable. Day v. Vinson, 78 Wis. 198. This court has repeatedly held, in effect, that an action to enforce a statutory liability against the stockholders of an insolvent corporation should be in equity and on behalf of one or more plaintiffs and all other creditors having similar claims, against all such stockholders, and also against the corporation unless it has been dissolved or its assets wholly exhausted. Sleeper v. Goodwin, 67 Wis. 588, and cases there cited. This rule was sanctioned by this court as early as Coleman v. White, 14 Wis. 700. It seems to be in harmony with the statute which declares; “When the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole” R. S. sec. 2604. This statute has been construed as merely re-enacting the rules which prevailed in equity, and which otherwise might have been held to be abolished by the Code. Barb. Parties, 50, 51. It is there said: “ When the question involved is one of common or general interest, the action may be [221]*221brought by one or more for tbe benefit of all who have such common or general interest, without showing that the parties are very numerous or that it would be impracticable to bring them all before the court.” This rule applies in equity to a variety of cases. 1 Van Santv. Eq. Pr. 76; McKinzie v. L'Amoureux, 11 Barb. 516; Hammond v. H. R. I. & M. Co. 20 Barb. 378. Whenever there are numerous persons merely having “ a common or general interest,” then they may join as parties plaintiff; but if they are all “ united in interest,” then they must so join. Ibid. In the case at bar, it is manifest that the several claimants merely have such “ common or general interest.”
It is said by a very learned author on Code Pleading:
■“ There are cases in whiqh a suit cannot be maintained in the name of the judgment creditor alone, but must be for himself and for the benefit of all other creditors who may come in, etc. This is applicable to all cases where, by statute or otherwise, no preference can be given, but the fund is applicable to all creditors jpro rata, as in cases of proceedings against insolvent manufacturing companies or other insolvent corporations.” 2 Van Santv. Eq. Pr. 134. The same learned author says: “ When the complaint is on behalf of the creditor who is plaintiff, and all others who may come in and contribute, etc., such other creditors are allowed to come in at any time, either before or after judgment, until the fund is actually distributed and paid out.” Id. 154. In Wilder v. Keeler, 3 Paige, 164, it was held that: “Under a decree upon a creditor’s bill, for the creditors to come in and prove their demands, it is a matter of course to permit a creditor to come in and prove his debt at any time before the fund is actually distributed and paid out, upon his showing a sufficient excuse for not coming in before the master, and upon payment of all costs produced by the delay.” The fact that such action is commenced in behalf of the parties named as plaintiffs, and others not named, [222]*222does not prevent the plaintiffs who are named from receiving payment or satisfaction of their respective claims, or discontinuing their suit at any time before there has been a decree therein for the benefit of those named and the others not named. Innes v. Lansing, 7 Paige, 583. In that case it was expressly held that: “ The filing of a bill by one creditor in behalf of himself and others will not prevent another creditor from filing a similar bill previous to a decree in the first suit. But as 'soon as a decree is obtained in either suit, for the benefit of all the creditors, the proceedings in all other suits may be stayed, if no other relief can be obtained in such other suits than could be had under the decree already made."’ In a more recent case in the highest court of the same state, it is said that: “ In such a suit, when an order or decree for an accounting is once made, under which all creditors are authorized to come in and present their demands, it operates as an interlocutory judgment in favor of each and every creditor of the fund, whether he actually comes in or not, as effectually as if he had been named and had appeared as a party; and after such an order is made no other creditor will be allowed to bring or to proceed with a separate suit for relief, but he must prove his claim and seek his relief in that suit.” Kerr v. Blodgett, 48 N. Y. 67. To the same effect, Travis v. Myers, 67 N. Y. 542; Attorney General v. Guardian Mut. Life Ins. Co. 77 N. Y. 277.
From the authorities cited, it follows as a logical sequence that the order adding new parties is in no way prejudicial to any of the defendants, but on the contrary may save them from the annoyance of a separate suit involving questions in which all such claimants have a common or general interest. Because the appellants are in no way aggrieved by the order of the circuit court of October 4, 1893, the same is hereby affirmed.
By the Court.— Order affirmed.
[223]*223Cassoday, J. In Day and others, Respondents, vs. Buckingham and others, impleaded with the Kakagon Iron Mining Company and others, Appellants, the facts are substantially the same as in the case against the Nimikon Iron Mining Company (Day v. Buckingham, ante, p. 215), decided herewith.
For the reasons given in the opinion filed in that case, the order of the circuit court in this case is affirmed.
Cassoday, J. In Day and others, Respondents, vs. Pierce and others, impleaded with the Bessemer Mining Company and others, Appellants, the facts are substantially the same as in the case against the Nimikon Iron Mining Company (Day v. Buckingham, ante, p. 215), decided herewith.
For the reasons given in the opinion filed in that case, the order of the circuit court in this case is affirmed.