Bowen v. Kuehn

The following opinion was filed December 16, 1890:

Cole, C. J.

This action is brought by the receiver of the telegraph company to collect an assessment upon the stock subscribed for or purchased by the defendant. It is *54 objected that the receiver, appointed by the Illinois court in a suit before it, has no capacity to sue in his own name as such receiver in the courts of this state. We shall not consider this vexed question, which has been so extensively discussed by the authorities, nor express any opinion upon it. We assume, for the purposes of this appeal, that the receiver might sue in his own name in the courts of this state to enforce a lawful assessment upon the unpaid subscriptions to the stock of the corporation. But we find the same fatal defect in the complaint in this case as in the Burnham Case, ante, p. 47. The complaint shows that a small number of the stockholders have paid the full par value of their stock; that other stockholders have paid forty' per cent, on the shares subscribed by them, while many others have never paid more than two per cent, or fifty cents on each share severally subscribed by them. An assessment of thirty-five per cent, is made on all the stockholders alike, except those who had paid in full. We have held in the Burnhmn Case that such an assessment was unequal, unjust, and should not be enforced. We deem it unnecessary to add anything to what is there said. It follows that the order of the superior court of Milwaukee county overruling the demurrer to the complaint must be reversed, and the cause be remanded for further proceedings according to law.

By the Court.—Ordered accordingly.

A motion for a rehearing was denied February 24, 1891.