Great Western Telephone Company v. Burnham

This was an action similar to that of Telegraph Co. v. Purdy, 16 Sup. Ct. 810, and was brought October 8, 1888, in the circuit court of Milwaukee county, in the state of Wisconsin, by the same plaintiff against George Burnham, and prosecuted against his executors, to recover the amount of an assessment alleged to be due under a contract of subscription in the same form as in that case, and under the decree of the circuit court of Cook county, in the state of Illinois, therein stated.

The complaint did not state the law of Illinois, nor set forth the decree of assessment in full, but alleged, among other things, that by that decree an assessment of 35 per cent. a share was laid upon all stockholders who had not paid in full, and that some stockholders, including the defendant, had paid $10, or 40 per cent, on each share, and many stockholders had never paid more than 50 cents, or 2 per cent, on a share.

A demurrer to the complaint, upon the ground, among others, that it did not state facts sufficient to constitute a cause of action, was filed by the defendant, and overruled by the court.

Upon appeal by the defendant from the order overruling the demurrer, the supreme court of the state, as the record shows, adjudged that the order be reversed, and the cause 'remanded to the said circuit court for such further proceedings therein as may be according to law,' and, in its opinion, after deciding that the assessment was unequal and unjust, added: 'We do not intend to express any definite opinion as to the real effect of the decree of the Illinois court, or as to how far it concludes the rights of shareholders who were not parties to that proceeding. Those questions are not now necessarily before us, and may be postponed until they arise. We confine our decision to the objection that the complaint shows an unlawful and illegal call or assessment upon Mr. Burnham, which should not be enforced.' 79 Wis. 47, 52, 53, 47 N. W. 373.

The cause was accordingly remanded to the inferior court. The plaintiff refused to amend the complaint, and insisted that it stated a sufficient cause of action, and relied upon the decree of assessment as a judgment of a court of the state of Illinois, entitled, under the constitution and laws of the United States, to full faith and credit in the state of Wisconsin. The inferior court sustained the demurrer, upon the ground 'that the complaint does not state facts sufficient to constitute a cause of action, because it does not appear upon the face of the said complaint that a valid or legal assessment was made upon the stockholders, and that the said assessment appears by the said complaint to be unequal and unjust,' and entered final judgment for the defendant, with costs. The plaintiff thereupon sued out this writ of error.

Thos. J. Sutherland, for plaintiff in error.

Reese N. Voorhees, for defendants in error.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.