Biron v. Edwards

• Decision Date: 14 October 1890
• Citation: 46 N.W. 813,77 Wis. 477
• Parties: BIRON v. EDWARDS, (TWO CASES.) BIRON v. SCOTT, (TWO CASES.)
• Court: Wisconsin Supreme Court

77 Wis. 477

46 N.W. 813

BIRON

v.EDWARDS, (TWO CASES.)

BIRON

v.SCOTT, (TWO CASES.)

Supreme Court of Wisconsin.

Oct. 14, 1890.

Appeal from circuit court, Monroe county.

These two appeals are from an order of the circuit court of Monroe county consolidating the four above-entitled actions into a single action, and directing the procedure in such consolidated action. In 1888, the plaintiff George S. Biron brought two actions, one in the circuit court of Wood county against John Edwards, and the other in the circuit court of Lincoln county against Walter A. Scott, as trustee of the estate of Thomas B. Scott, deceased. The alleged causes of action in both arise out of the same transactions. These transactions, as alleged in the complaint, are, in substance, that one Francis Biron, a resident of Wood county, died intestate in 1877, leaving as his only heirs at law Francis Biron, Jr., Mary Laura Biron, and the plaintiff George S. Biron; that Thomas B. Scott was duly appointed administrator of his estate, and as such in 1881 procured from the proper court a license to sell, and did sell, a large quantity of timbered lands belonging to such estate, of great value; that the defendant Edwards, who was a partner of such administrator, was the nominal purchaser at such sale, and the administrator conveyed the lands to him, but that the real purchaser was the firm of Scott & Edwards, each partner paying one-half of the consideration, and that Edwards, without further consideration, soon thereafter conveyed to such administrator an undivided one-half of the lands; that Thomas B. Scott died in 1886, testate, in Lincoln county, leaving all his real estate in Wisconsin and other property to the defendant Walter A. Scott, in trust for certain purposes specified in his will, and such estate has been turned over to such trustee, who has the custody and control of all the property belonging thereto; that, in 1887, Walter A. Scott, as such trustee, and Edwards sold the same lands, and received therefor a sum largely in excess of their cost. The complaint contains numerous other averments of fact not necessary to be here stated. The relief demanded in each action is that the defendant therein be adjudged to hold the money received for such lands, or an equitable proportion thereof, in trust for the benefit of the heirs of Francis Biron, deceased, and that one-third thereof be paid over to the plaintiff. An accounting and general relief are also demanded. Each defendant demurred to the complaint against him on the grounds of want of jurisdiction, and the nonjoinder of the other defendant as a defendant in the action. The place of trial of both actions was thereupon changed to Monroe county, and that court afterwards overruled such demurrers. Each defendant then answered in the action against him, alleging facts claimed to be a defense thereto. The answers of both defendants are substantially alike. The specific contents thereof are immaterial on these appeals. In October, 1889, Mary Laura Biron, another of the heirs of Francis Biron, deceased, also commenced two corresponding actions, one in Wood county against Edwards, and the other in Lincoln county against Walter A. Scott, as trustee as aforesaid, to recover her share of the funds claimed to be held by the defendants respectively, on account of such sales, for the use and benefit of such heirs. The allegations of the complaints in these actions are substantially like those in the complaints in the corresponding actions brought by George S. Biron against the same defendants. Each defendant demurred to the complaint against him for defect of parties plaintiff and defendant, naming the two other Biron heirs as necessary plaintiffs, and the defendant in the other action as a necessary defendant. This demurrer has not been decided. The place of trial of these actions was afterwards also changed to Monroe county; but before such change the circuit court of the latter county, on motion of all the heirs of Francis Biron, deceased, made an order, dated February 12, 1890, making all of such heirs parties to each of the actions of George S. Biron, with leave to bring in other defendants should the plaintiff be so advised. On April 7, 1890, that court made the order consolidating the four actions from which these appeals were taken. The material portion of such order is as follows: “Ordered that the several causes above entitled be and they hereby are consolidated into one action in this court; that Francis Biron be and he hereby is made a plaintiff in said action; that such action proceed in the name of George Severe Biron, Mary Laura Biron, and Francis Biron, plaintiffs, against John Edwards and Walter A. Scott, as trustee of the estate of Thomas B. Scott, deceased, defendants, with such other parties defendant as plaintiffs may determine to bring in, pursuant to the order of this court heretofore made; that the plaintiffs make their complaint in such consolidated action within forty days after the date of this order, or in case appeal is taken therefrom, and same is affirmed, then within twenty days after the return of the record to this court; that the defendants have twenty days after service of such complaint in which to answer the same, but that they have leave to stand in such consolidated action upon their answer or answers in either or...