Gores v. Elliott

84 N.W. 865, 108 Wis. 465, 1901 Wisc. LEXIS 158

• Court: Wisconsin Supreme Court
• Decided: January 8, 1901
• Status: Published

Opinion

WiNslow,- J.

This is an action against the officers of a bank to recover property lost, as alleged, by their negligent and fraudulent mismanagement of its business. Necessarily, it must be alleged in such a complaint that any party who is made a defendant was an officer of the bank when the acts complained of took place. Careful.reading of this complaint shows that nowhere is it alleged that the defendant Elliott was at any time an officer of the insolvent bank. His name appears nowhere in the complaint save in the title. It may be reasonably inferred, perhaps, from the allegations, that Mr. ElUott was a stockholder of the bank, although that fact is not directly alleged; but it cannot be inferred that he was a director, because the directors are specifically named and Mr. Elliott's name does not appear in the list; nor is it alleged that he was an officer of any kind. All the acts and defaults charged against the defendants are necessarily official acts, and consequently the general allegation, frequently repeated in the complaint, that “ the defendants, as directors and officers ” of the bank, did •or omitted to do certain acts, can only be reasonably construed as referring to the defendants who are alleged to have been directors or officers of the bank. These considerations render necessary the sustaining of Mr. Elliott's demurrer, without reference to other questions raised; and, as these questions are considered and decided in the case of Gores v. Field (decided herewith), 109 Wis. 000, it is unnecessary to discuss them here.

By the Court.— Order reversed, and action remanded with ■directions to sustain the demurrer.

BaedeeN, J., took no part.