74 N.W. 93 (Wis. 1898), Roberts v. Weadock

Citation:74 N.W. 93, 98 Wis. 400
Opinion Judge:ROUJET D. MARSHALL, J.
Party Name:ROBERTS, County Judge, Appellant, v. WEADOCK and others, Respondents
Attorney:For the appellant there was a brief by Reed & Reed, attorneys, and Mann & Corcoran, of counsel, and oral argument by Myron Reed. They argued, among other things, that the judgment of the county court for payment of the claim cannot be attacked collaterally in this action. It is not a defense that...
Case Date:February 08, 1898
Court:Supreme Court of Wisconsin
 
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Page 93

74 N.W. 93 (Wis. 1898)

98 Wis. 400

ROBERTS, County Judge, Appellant,

v.

WEADOCK and others, Respondents

Supreme Court of Wisconsin

February 8, 1898

Argued: January 13, 1898

APPEAL from a judgment of the circuit court for Douglas county: A. J. VINJE, Circuit Judge. Reversed.

Action on an administrator's bond. The estate of E. V. Mundy, deceased, being in process of settlement in the probate court of Douglas county, Wisconsin, such proceedings were there duly had that a claim for $ 2,000, with interest thereon from March 22, 1890, was allowed in favor of Robert C. Ray and James D. Ray. Thereafter James D. Ray died, and Robert C. Ray was appointed as executor of his estate. Defendant Weadock was the executor of the estate of E. V. Mundy, deceased, and the other defendants were his bondsmen. Such proceedings were had after the allowance of the claim as aforesaid, that the county court entered an order for the payment of such claim within a time therein mentioned. Such order was made on a petition setting forth, among other things, the allowance of the claim, and that there was sufficient property belonging to the estate, applicable to its payment, to pay it in full. The order recited as a fact established on the hearing that there was sufficient property in the hands of the executor to pay the claim. Service of the notice of the hearing on the petition was ordered to be made on Ross, Dwyer & Hanitch, attorneys for the executor, and they appeared on such hearing. The claim was not paid as required by the order, and such proceedings were thereafter duly had that the county court, by order, authorized the bringing of this action against the executor and his bondsmen to recover therefor.

The complaint sets forth by appropriate allegations all of the aforesaid facts, and that after the claim was ordered to be paid plaintiff demanded payment thereof of the executor, which was refused. The defendants answered, admitting all the facts alleged in the complaint, down to and inclusive of the order for the payment of the claim. There was no denial of the allegation of demand for payment pursuant to the order, or of the due making of the order, or that the same had not been appealed from or set aside. There was a denial of the sufficiency of assets.

On the trial there was evidence on the part of plaintiff that one of the attorneys for the claimants, after the entry of the order for payment of the claim, had some talk with the executor in respect to such payment. There was also evidence that the executor informed such attorneys by letter that there was no money with which to pay the claim; also evidence by the executor to the same effect. Proof was made of all proceedings in the probate court as alleged, and there was no proof to the contrary, except the recital in the order authorizing suit, that the...

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