Opinion
September 9, 1953 —
October 6, 1953.
APPEAL from orders of the circuit court for Milwaukee county: RONOLD A. DRECHSLER, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Louis R. Potter of Milwaukee.
For the respondent there was a brief and oral argument by Gerald Powers of Milwaukee.
Action for divorce brought by the plaintiff Myrtle M. Dobbert on September 18, 1952. The plaintiff appeals from an order entered on November 7, 1952, denying her motion to implead L. C. Dobbert General Agency, Inc., a corporation; also from an order entered on December 4, 1952, which (1) denies her application for review of the order of November 7, 1952, (2) grants defendant's motion to strike from the record an amended summons and complaint wherein it was sought to join the same corporation as a party defendant, (3) limits an adverse examination of the defendant to him as an individual and not as an officer or stockholder of the corporation, and (4) strikes from a subpoena served for an adverse examination of the defendant the direction that he produce upon his adverse examination certain books and records of the corporation.
Plaintiff's application for the interpleader of the corporation is based upon her contention that some of the property of the parties was by a void agreement assigned to the corporation, practically all of the stock of which she claims was owned by her and her husband.
The plaintiff's application for an order interpleading the corporation was addressed to the discretion of the court, sec. 263.15(2), Stats. That the court has authority in a divorce action to interplead a third person was held in Damon v. Damon, 28 Wis. 510.
In Varney v. Varney, 54 Wis. 422, 423, 11 N.W. 694, it was held, however, that the power is limited to those cases in which it is made to appear that property actually owned by the husband is in the hands of the third person and that such property must be reached to replace in the hands of the husband enough to meet any demands likely to be adjudged in the wife's favor. The court says that "if it appears that the estate of the defendant not disposed of is ample for that purpose [of satisfying the judgment], there is no reason for making his grantee a party to the action."
It does not appear from the complaint, the proposed amended complaint, or the affidavits submitted by the plaintiff in support of her motion to interplead the corporation, that defendant is without property which might be available to meet the demands of any judgment which might be awarded to her. In any event, we are unable to say that the trial court abused its discretion in making the order of November 7, 1952, denying plaintiff's motion to interplead the corporation.
The same must be said with respect to that part of the order of December 4, 1952, which strikes from the record an amended summons and complaint wherein it was sought to join the same corporation as a party defendant. Nothing appears in the record to indicate that the wife has been prejudiced by any dealings between the defendant and the corporation, nor does it appear that the court abused its discretion in striking the pleading.
That part of the order of December 4, 1952, which limits the adverse examination of the defendant and which strikes from the subpoena for the adverse examination the direction that he produce upon his examination certain books and records of the corporation, the latter of which is in effect a further limitation of the examination, is not appealable. Will of Block, ante, p. 471, 59 N.W.2d 440.
Plaintiff's attack upon that part of the order of December 4, 1952, which denies her application for a review of the order of November 7, 1952, does not seem to us to require comment.
By the Court. — Orders affirmed.