Opinion
December 5, 1955 —
January 10, 1956.
APPEAL from an order of the county court of Oneida county: GEORGE A. RICHARDS, Judge. Reversed.
For the appellants there was a brief by O'Melia Kaye of Rhinelander, and oral argument by Walter F. Kaye.
For the respondents there was a brief by Schmitt Gullickson of Merrill, and oral argument by Stuart G. Gullickson.
Demurrer. This action was commenced on October 14, 1954, and was brought by Minocqua Resort Association, Inc., a nonstock, nonprofit corporation, which will hereinafter be referred to as the "corporation," George Hartman, and Theodore Vornholt, individually for themselves and for the others similarly situated as members of or associated with Minocqua District Resort Association, a voluntary association, which will be referred to as the "original association," and of Minocqua Region Resort Association, a voluntary resort association, which will be referred to as the "successor association," as trustees of certain funds and as representing the members of either and both said associations.
Two causes of action are pleaded. It is alleged that prior to the time when the corporation was organized on September 29, 1954, there existed the original association with a membership made up of resort owners and operators of the town of Minocqua in Oneida county. It was without a constitution or by-laws. Prior to 1951 it had acquired property of the value of approximately $7,000. Its membership was limited to residents of the town of Minocqua so as to qualify it to receive an annual donation from the township. On or about May 1, 1951, nonmembers of the original association called a "general public rump" meeting and without notice to the original association members, purported to form a new voluntary affiliation without articles, constitution, or bylaws, and designating itself as the Minocqua Region Resort Association, which, as we have said, will be referred to as the successor association. By "acclamation of the substantial proportion of nonmembers of the . . . [original] association," officers were elected, also nonmembers of the original association. The assets of the original association were not transferred to the successor association, but were "usurped" by the men designated as the officers of the successor association, and are still held by them, the named individual parties defendant. Only one of the individually named defendants, Stack, had been a member of the original association.
The successor association's membership was open to the general public from the town of Minocqua and adjoining townships, and differs substantially from membership of the original association. George Hartman, individual plaintiff, was and is a resort owner and member of the original association. Theodore Vornholt, also a party plaintiff, was and is a member of the successor association. Each is as such member interested in the assets referred to and brings this action on behalf of himself and others similarly situated.
In April, 1954, those who later became members of the corporation were informed that the township of Minocqua could not make its customary annual advertising donation to the successor association because its membership and beneficiaries would be property owners in other townships. Therefore, the individual plaintiffs and other members of the still-undissolved associations gave notice of a meeting to be held on May 28, 1954. At that meeting it was voted to incorporate as a temporary organization consisting of resort-owning taxpayers of the town of Minocqua. A committee received from the town of Minocqua its annual $1,500 donation.
Notice of another meeting to be held on September 27, 1954, was given by publication in a newspaper and by mail addressed to each of the members of both voluntary associations. The meeting was held and by unanimous vote of forty-five members present it was decided to incorporate. On the next day members of the successor association met and announced that they would take and seize some of the accumulated funds and equipment and expend the same to their own uses.
The individual plaintiffs have an "interest to see that the funds and properties in defendants' possession are declared trust funds and are properly applied" by transfer thereof to plaintiff corporation.
The prayer for relief in the first cause of action is as follows:
"That the court declare that plaintiff corporation is the lawful successor to the funds, properties, and assets of Minocqua District Resort Association, a voluntary association and of the rights if any of Minocqua Region Resort Association, and is entitled thereto.
"That the court determine and declare the legal status of Minocqua Region Resort Association and its rights in the premises and who are its members, if any, and the rights of each therein.
"That the court declare the status of the funds and properties involved as trust properties, and direct the application thereof and if not trust funds, who are the persons having an interest therein, and to declare distribution thereof.
"That the court grant declaratory relief in the premises.
"That the court compel defendants divest themselves from control or dominion over the properties in question and enjoin them from disposition thereof."
The second cause of action is pleaded by the individual plaintiffs George Hartman and Theodore Vornholt on behalf of themselves and others similarly situated as their separate cause of action, "particularly if relief under the first cause of action is denied." All of the allegations of the complaint in the first cause of action are realleged by reference. There are added allegations:
". . . that they personally and for all others similarly situated have an interest in the cause of action herein to see that the properties in this action are properly applied if it legally should, to plaintiff corporation as recipient and administrator of the trust set out, or otherwise to whomsoever the court finds entitled. That in any event they personally have an interest in that the court declare the status and rights of each in the premises."
They demand judgment "specifically as demanded in the first cause of action."
The complaint in the first cause of action was amended so as to include the allegations that defendants have taken and hold a building fund which had been accumulated, that they have interfered with mails belonging to plaintiff corporation and with its work to plaintiffs' damage of upwards of $10,000. The prayer for relief of the first cause of action was amended so as to include a demand for judgment for $10,000 or upwards. Defendants demurred to the complaint on three grounds, the second of which was that several causes of action have been improperly united.
The court by order entered on May 6, 1955, overruled the demurrer upon the first and third grounds stated, and sustained it as to the second ground "that several causes of action have been improperly united." Plaintiffs appeal.
The trial court based its conclusion upon the theory that because, as appears from the allegations of the amended complaint, the corporation plaintiff seeks damages for the interference by defendants with its mail, in which matter the individual plaintiffs have no interest, there is an improper joinder of causes of action.
"The test of whether there is more than one cause of action stated or attempted to be stated in a complaint is not whether there are different kinds of relief or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication." Zinc Carbonate Co. v. First Nat. Bank of Shullsburg (1899), 103 Wis. 125, 139, 79 N.W. 229. Quoted with approval in Usow v. Usow (1933), 213 Wis. 395, 251 N.W. 458.
It appears quite clearly from the allegations of the complaint, particularly the prayers for relief, that the individual plaintiffs demand nothing, as their own, that they seek recovery of nothing alleged to have been taken from them as individuals. They and the corporation contend that the assets withheld by the defendants are the property of the corporation. It is the primary right of the corporation which plaintiffs contend has been invaded by the defendants, and although it may be said that the individual plaintiffs are unnecessarily joined, that does not make the complaint subject to objection for misjoinder of causes of action.
The complaint is not rendered objectionable by reason of the fact that it is demanded that the status of the assets be declared, and that if it is determined that they are not trust funds the court declare distribution thereof. That must be construed as an incidental demand and does not affect the character of the complaint as asserting but one primary right or purpose, that is, to recover from the defendants certain property which is not theirs. Herman v. Felthousen (1902), 114 Wis. 423, 90 N.W. 432.
Defendants suggest that we treat the complaint as alleging, on behalf of the corporation, a cause of action for damages because of interference with plaintiff's mail and right to carry on its work, and on behalf of the individual plaintiffs as seeking to impose a trust upon the assets involved and for a distribution thereof. They contend that this is an attempt to join an action at law with one in equity. It may be that it is, but it must be kept in mind that the action is brought primarily on behalf of the corporation and to place in its hands the property held by the voluntary associations, and that whatever other relief may be demanded is only incidental to the primary right alleged. The fact that a cause of action at law is sought to be joined with one in equity does not of itself make the complaint demurrable, sec. 263.04, Stats. Defendants do not suggest any reason why the statute is not applicable.
It is urged by the defendants that the facts alleged in the complaint do not establish plaintiff corporation as a successor entitled to the assets of the voluntary groups. As we construe that contention, it is to be considered as a general demurrer. It seems to us that the answer thereto is contained in their own brief, wherein they say that:
"The allegations set up by the corporation in this complaint to the effect that the defendants have interfered with the mails rightfully belonging to it and improperly interfered with its work, though nebulous and perhaps subject to a motion to make definite and certain, probably set up a good cause of action in favor of the plaintiff corporation as against a demurrer."
We are not now concerned with the question whether the corporation is entitled to the assets involved. The sole question is whether the complaint states a cause of action, the successful prosecution of which would entitle plaintiffs to some relief, and if one is disclosed by its allegations the demurrer must be overruled.
The plaintiffs request that we determine the question whether the corporation is a successor entitled to the assets of the two voluntary associations. The request overlooks the fact that we have before us only a demurrer. The citation of authorities to support the answer to the request is not required — we are without authority at this stage of the proceedings to make such determination.
By the Court. — Order reversed. Cause remanded for further proceedings according to law.