Greenya v. Reliance Security Co.

154 N.W. 972, 161 Wis. 483, 1915 Wisc. LEXIS 245

• Court: Wisconsin Supreme Court
• Decided: November 16, 1915
• Status: Published

Opinion

Kerwin, J.

The defendant Reliance Security Oompany appealed from an order overruling its demurrer to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action.

The action was brought to foreclose a mortgage executed by the defendants Theodore Schubring and Margaret Schubring, his wife, and the complaint alleges that said mortgagors conveyed said mortgaged property by’ warranty deed to the defendant Arthur Hoffmann subject to said mortgage, which said Hoffmann assumed and agreed to pay. * The complaint further alleges that the defendant Reliance Security Company had or claims to have some interest in or lien upon the mortgaged premises, which interest or lien, if any, accrued subsequent to tbe lien of tbe mortgage. Tbe complaint does not state that tbe defendant Reliance Security Gonvpany is a corporation. A notice of tbe object of tbe action was served upon tbe defendant Reliance Security Oompany.

Tbe claim of tbe appellant is that tbe complaint is demur-rable because it fails to state that tbe defendant last named is a corporation. See. 3205, Stats., provides:

“In an action by or against a corporation tbe complaint must aver that tbe plaintiff or defendant, as tbe case may be, is a corporation. If it was incorporated under any law of tbis state that fact must be averred; if it was not so incorporated an averment that it is a foreign corporation is sufficient. Tbe complaint need not set forth or specially refer to any act or proceeding by or under wbieb tbe corporation was made.”

We do not think tbe instant case falls within the terms of tbe statute. Tbis is not an action against a corporation within tbe meaning of tbe statute. No claim is made against tbe defendant Reliance Security Company. Tbis defendant is simply given notice of tbe proceedings to foreclose a mortgage upon premises upon which it has or claims to have a lien subsequent to tbe lien of tbe plaintiff. It is wholly immaterial whether tbe defendant Reliance Security Company is a corporation or not. Tbe cause of action stated is against tbe other defendants and no cause of action is stated or attempted to be stated against tbe defendant Reliance Security Company. Notice is given to said Reliance Security Company of the foreclosure proceedings because of its subsequent lien or claim on the premises involved.

If tbe Reliance Security Company, defendant, has or claims no interest subsequent to tbe mortgage of tbe plaintiff, it should disclaim and tbe suit should be dismissed as to it. Gilchrist v. Foxen, 95 Wis. 428, 70 N. W. 585; Strobe v. Downer, 13 Wis. 10.

Carpenter v. McCord L. Co. 107 Wis. 611, 83 N. W. 764, is relied upon by appellant. We think the case is distinguishable from tbe instant case. In tbat case tbe action was brought against tbe McCord Lumber Company and tbe Soper Lumber Company under tbe log lien statute, sec. 3329, to enforce a lien against logs owned by tbe McCord Lumber Company when tbe lien accrued and afterwards sawed into lumber and sold to tbe Soper Lumber Company. There was a joint demurrer by both defendants. Tbe action was within tbe meaning of tbe statute against tbe McCord Lumber Company and tbe Soper Lumber Company, corporations.

By the Gourt. — Tbe order appealed from is affirmed.