Boltz v. Schutz

• Decision Date: 27 June 1895
• Docket Number: Nos. 9288, 9289 - (117, 118).,s. 9288, 9289 - (117, 118).
• Citation: 61 Minn. 444
• Parties: KILLIAN BOLTZ v. MRS. JACOB SCHUTZ and Others.<SMALL><SUP>1</SUP></SMALL> EUGENE WILHELM v. SAME.
• Court: Minnesota Supreme Court

Page 444

61 Minn. 444

KILLIAN BOLTZ v. MRS. JACOB SCHUTZ and Others.¹

EUGENE WILHELM v. SAME.

Nos. 9288, 9289 - (117, 118).

Supreme Court of Minnesota.

June 27, 1895.

Appeal by plaintiff in each of the above entitled actions from a judgment of the district court for Houston county dismissing the action on the merits. Affirmed.

The complaint in the action wherein Killian Boltz was plaintiff was as follows:

"Plaintiff complaining herein respectfully states to this court: That heretofore, to wit, on October 15, 1883, the defendant Daniel Klein was appointed by the probate court of said Houston county, Minnesota, administrator of the estate of Jacob Schutz, deceased, and duly qualified and acted as such, and has not since been discharged. That the other defendants above named are the widow and heirs at law of said Jacob Schutz, respectively, who died intestate in said county May 5, 1876, seised of the southwest quarter of the south-east quarter of section 31, town 103, range 5, in said county, the home-stead of said deceased, and 10 acres in section 20, said town and range, which said 10½ acres have since been sold by the administrator, and applied on expense of administration and on claims against said estate.

"That thereafter, in due proceedings in said probate court on the allowance of claims against said estate, judgment was duly rendered against said estate on March 24, 1884, for the sum of $215.25 in favor of plaintiff, and said judgment was duly recorded and docketed in said probate court. That said sum is wholly unpaid, except as to the sum of $15.36 paid thereon by the administrator September 8, 1884.

That said judgment was on said March 24, 1884, duly entered and docketed in said court in Record Book 1 of Claims, on page 102. The plaintiff is the owner and holder of said judgment, and all rights therein. That by reason of the facts above stated said judgment is a lien on said 40 acres, subject to the life estate of the said widow of Jacob Schutz, deceased.

"Wherefore plaintiff prays judgment for $199.89, and interest thereon at 7 per cent. per annum from March 24, 1884, and that said judgment be declared a lien on said 40 acres, subject to the life estate of the said widow of said Jacob Schutz; and for his costs and disbursements herein, and for such other and further relief as to this court may seem just."

By answer, defendants, except Daniel Klein, admitted the allegations in the first paragraph of the complaint, but denied that there is any record of the judgment described in the complaint, and all other allegations therein.

The issues raised by the pleadings in the action by Eugene Wilhelm were substantially the same.

The following is the stipulation as to facts: "It is hereby stipulated and agreed by and between the respective parties, plaintiffs and defendants, in the two causes hereinbefore entitled, now pending, at issue and for trial in said court, that each thereof shall be heard, tried, and determined upon the summons, notice of no personal judgment, complaint, and answer, and upon the following facts, admitted for such purpose, to wit: (1) That Jacob Schutz died intestate in the county of Houston and state of Minnesota on the 5th day of May, A. D. 1876, seised of the 10½-acre tract of land as well as of the 40-acre tract of land described in the complaint, and that the latter tract was at and before his death used and occupied by him and his wife as his homestead. (2) That his said wife or widow has continued to occupy same ever since, and still occupies it as her homestead. (3) That said Mrs. Jacob or Wilhelmina Schutz, the defendant, is the widow, and the defendants Lydia Franklin, Henry Schutz, and Christian Schutz are all the children and heirs left by said Jacob Schutz, deceased; that the defendant Daniel Klein was, on the 15th day of October, A. D. 1883, duly appointed by the...