H. B. Claflin Co. v. Stearns

Wisconsin Supreme Court

H. B. Claflin Co. v. Stearns

63 N.W. 80, 90 Wis. 283, 1895 Wisc. LEXIS 256

DecidedApril 30, 1895

StatusPublished

This text of 63 N.W. 80 (H. B. Claflin Co. v. Stearns) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

H. B. Claflin Co. v. Stearns, 63 N.W. 80, 90 Wis. 283, 1895 Wisc. LEXIS 256 (Wis. 1895).

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Opinion

Winslow, J.

The order of September 25, 1894, allowing Stearns & Spingarn to intervene and contest the bona fides of the claims of the execution creditors, was an order made and entitled in the partnership action and in no other. It purported to allow intervention in the several creditors’ actions, but it was made only in the partnership action. It is manifest that an appeal cannot be taken in one action from [287]*287an order made in an entirely different action. Authorities'will not be needed to sustain this proposition. Tbe action for dissolution of the partnership became, in substance, a sequestration action after the intervention of Stearns & Spingarn and the general appearance of the execution creditors and the sheriff therein. The two orders of October 11th were omnibus orders, entitled in the partnership action and in the five creditors’ actions as well. Such a practice is certainly to be condemned. It produces confusion and uncertainty. It effectually violates all rules and statutes which provide against the misjoinder of actions and parties to actions. The action in which they should have been made, if at all, is the partnership action. However, the plaintiff cannot be said to be aggrieved by the fact that they also appear to be entitled in the other actions. The motion to reinstate-the order of September 25th and nullify the modifying order of September 29th, was made and entitled only in the partnership action, and it is very evident that it was in fact properly a motion in that action. The order made on such motion, October 11th, clearly gained nothing of substantial force by being also entitled in the other actions, in which no motion had been made. The proper action in which to test its validity is the action in 'which it belongs and in which the motion on which it was based was made, and that is the partnership action. If the plaintiff has been wronged, it has been wronged by the order in the partnership action; and if it has any grievance it results from that order, because, while it remains unreversed in that action, the plaintiff is bound by it. The same remarks apply, substantially, to the order refusing to require the entry of the modifying order of September 29th, nune pro tune. The modifying order was made and entitled solely in the partnership action, and the order denying the motion to require its entry nune pro time was necessarily an order in the same action.

By the Court.— Appeal dismissed.

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Winslow, J.

The order of September 25, 1894, allowing Stearns & Spingarn to intervene and contest the bona fides of the claims of the execution creditors, was an order made and entitled in the partnership action and in no other. It purported to allow intervention in the several creditors’ actions, but it was made only in the partnership action. It is manifest that an appeal cannot be taken in one action from [287]*287an order made in an entirely different action. Authorities'will not be needed to sustain this proposition. Tbe action for dissolution of the partnership became, in substance, a sequestration action after the intervention of Stearns & Spingarn and the general appearance of the execution creditors and the sheriff therein. The two orders of October 11th were omnibus orders, entitled in the partnership action and in the five creditors’ actions as well. Such a practice is certainly to be condemned. It produces confusion and uncertainty. It effectually violates all rules and statutes which provide against the misjoinder of actions and parties to actions. The action in which they should have been made, if at all, is the partnership action. However, the plaintiff cannot be said to be aggrieved by the fact that they also appear to be entitled in the other actions. The motion to reinstate-the order of September 25th and nullify the modifying order of September 29th, was made and entitled only in the partnership action, and it is very evident that it was in fact properly a motion in that action. The order made on such motion, October 11th, clearly gained nothing of substantial force by being also entitled in the other actions, in which no motion had been made. The proper action in which to test its validity is the action in 'which it belongs and in which the motion on which it was based was made, and that is the partnership action. If the plaintiff has been wronged, it has been wronged by the order in the partnership action; and if it has any grievance it results from that order, because, while it remains unreversed in that action, the plaintiff is bound by it. The same remarks apply, substantially, to the order refusing to require the entry of the modifying order of September 29th, nune pro tune. The modifying order was made and entitled solely in the partnership action, and the order denying the motion to require its entry nune pro time was necessarily an order in the same action.

By the Court.— Appeal dismissed.

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Bluebook (online)

63 N.W. 80, 90 Wis. 283, 1895 Wisc. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/h-b-claflin-co-v-stearns-wis-1895.