Charmley v. Charmley

• Decision Date: 23 June 1905
• Parties: CHARMLEY v. CHARMLEY.
• Court: Wisconsin Supreme Court

125 Wis. 297

103 N.W. 1106

CHARMLEY

v.CHARMLEY.

Supreme Court of Wisconsin.

June 23, 1905.

Appeal from Circuit Court, Dodge County; James J. Dick, Judge.

Proceedings for the settlement of the estate of Joseph Charmley, deceased, against which Wilhelmina Charmley filed a claim. From a judgment of the circuit court reversing a county court order disallowing the claim, the administrator appeals. Reversed.

Plaintiff filed in the county court for Dodge county in proceedings for the settlement of her deceased husband's estate a claim for $1,000, alleged to have been loaned to him November 23, 1870, and six years' legal interest thereon. Objections were duly filed thereto and such proceedings were had in respect to the matter that an order was entered disallowing the claim. Proceedings were had to appeal therefrom to the circuit court, which recognized the same as effectual. A trial was had in such court resulting in these findings, in effect: Plaintiff and Joseph Charmley were husband and wife from 1865 to 1902, when he died. She seasonably filed a claim for $1,360 against his estate in the probate proceedings to settle the same. The claim was for $1,000, with 6 per cent. interest thereon for six years. November 22, 1870, she paid a mortgage on the homestead of herself and husband, placed thereon by another before the title came to him, which April 24, 1869, he assumed and agreed to pay. She made such payment to prevent a foreclosure of the mortgage. She did not voluntarily make the payment nor intend to relinquish her right to repayment of the money from her husband or his heirs. No part of the money has ever been repaid to her. She is entitled to have her claim as filed in the county court amended to correspond with these findings.

As a matter of law from the foregoing the court concluded that by right of subrogation plaintiff's claim was a legitimate charge against her deceased husband's estate; that it was valid in the beginning and was not affected by the statute of limitations. Judgment was rendered reversing the order of the county court and remitting the matter thereto for further proceedings. Judgment was entered accordingly from which this appeal was taken.Markham & Markham, for appellant.

Malone & Miller, for respondent.

MARSHALL, J. (after stating the facts).

Several supposed defects in the appeal from the county court are pointed out in the brief of counsel, but it does not appear by the record that any objection to the jurisdiction of the circuit court was made, except upon the ground that the appeal bond was not filed in the county court until three days after the notice of appeal was filed. By submitting, as was done, to a trial on the merits all objections to defects in the appeal, not prior thereto brought to the attention of the circuit court and duly insisted upon, were waived. Kasson v. The Estate of Brocker, 47 Wis. 79, 1 N. W. 418.

Section 4032, Rev. St. 1898, upon which counsel for appellant rely in support of the objection as regards the filing of the bond, is remedial and must be liberally construed so as to give the largest measure of protection to the right of appeal which it will reasonably permit. Such right is given by section 4031, which provides that any person aggrieved by a decision of the county court “may appeal therefrom to the circuit court * * * by filing a notice thereof with said county court within sixty days from the date of the act appealed from, * * * together with such undertaking as is required in” section 4032. A literal compliance with the words of the statute is not necessary. Substantial compliance is sufficient. Perkins, Adm'r, v. Shadbolt, 44 Wis. 574. The prime essential in taking an appeal is the filing of a notice of appeal within the time limited therefor. That being done the filing of the bond afterwards will operate to perfect the appeal. In Perkins, Adm'r, v. Shadbolt, supra, it was held that a bond may be perfected even after the sixty day period. The language of the statute as it then existed, and is now found in section 4032, was given substantially the same effect, as regards the language of the statute now found in section 4031, as has been given to somewhat similar statutes as regards appeals to this court. Harrigan v. Gilchrist, 121 Wis. 212, 99 N. W. 909. Section 4032 provides that the party appealing, shall, “at the time of filing notice of appeal and before his appeal shall be effectual for any purpose, file with the county court an undertaking,” etc., plainly indicating that, while for any purpose of the appeal, as regards official action in sending the papers to the appellate court, it is ineffectual till the filing of the undertaking occurs, there is an appeal instituted by filing the notice of appeal within the proper time, which may be perfected, at least within such time. This court construed the statute with great liberality in holding in Perkins v. Shadbolt, supra, that an appeal may be perfected after the expiration of the sixty day period in case of the filing at first of an insufficient bond, but such holding very clearly precludes now reading the statutes so as to render failure to file the undertaking with the notice of appeal fatal to the proceedings, regardless of whether it is filed within the time limited for taking the appeal.

The claim was in the nature of an action upon contract. There is no suggestion in the statement of facts made in support thereof of a demand based upon equitable right of subrogation. Upon the cause assuming the character of an action pending in the circuit court, as it did on the appeal thereto being perfected and the record being properly filed in such court, it was an action pending there for legal relief,--an action to recover upon contract. There was no evidence to support such a cause of action, but there was evidence as the court viewed the matter, showing that respondent was entitled to be subrogated to the ownership of the mortgage interest which was discharged by the use of her money, and after finding the facts in that regard the court ordered the claim to be amended accordingly, and thereon and such facts rendered the judgment complained of.

It has been repeatedly held that it is not permissible to entirely change the nature of a cause of action by amendment,--substituting one in equity for one at law, or one on contract for one sounding in tort. Carmichael v. Argard, 52 Wis. 608, 9 N. W. 470;Gilman v. Gross, 97 Wis. 224-229, 72 N. W. 885;Post v. Campbell, 110 Wis. 378, 85 N. W. 1032;Gates v. Paul, 117 Wis. 170, 94 N. W. 55;Klipstein v. Raschein, 117 Wis. 248, 94 N. W. 63.

The learned court seems to have supposed that the cause of action, as originally stated, was in equity and so justified the amendment. The judge said in disposing of the matter: “The case is in equity. It is very much like Gudden v. Estate of Gudden, 113 Wis. 297, 89 N. W. 111.” Plainly he entirely misconceived that case. It was not an action in equity. It clearly was one to recover on contract for money loaned. If the evidence here, in any reasonable view of it, established a cause of action in respondent's favor, it was purely equitable to recover in the right of the mortgagee to whom the money was paid. However, it is difficult to discover facts found, or established, sufficient to support such an action. Moreover, while the court ordered respondent's complaint,--we so speak of the claim filed,--amended so as to form a basis for a recovery upon the ground of subrogation, it seems that the judgment was not appropriate thereto. The equitable right could not reach beyond the property conserved by the payment of the money to discharge the lien thereon or some property into which it was converted and in which it could be identified. No mere money demand was created by the payment of the mortgage. There was no proof here that the property conserved was possessed by the husband at the time of his death, either in the form it was in at the time of the payment of the mortgage or in any other. The learned court seems to have supposed that if the respondent was subrogated to the rights of the mortgagor that included an equitable transfer of the money demand against her husband so that she could sue upon it. Obviously, the equitable assignment went no further than the mortgagor's interest in the property, the debt itself being merely kept alive so far as necessary to support the lien, not so as to constitute in the hands of respondent any legal claim whatever.

The trial court went beyond the law of subrogation in this case. If one is compelled to pay a debt for which he is not personally liable in order to protect his interest in the property upon which such a debt is a charge superior to such interest, he thereby becomes equitably entitled to have the prior lien preserved and enforced as the original owner might have had it enforced, so far as necessary for his protection against loss. Watson v. Wilcox, 39 Wis. 643, 20 Am. Rep. 63;McLaughlin v. Estate of Curts, 27 Wis. 644;Morgan v. Hammett, 23 Wis. 30;Levy v. Martin, 48 Wis. 198, 4 N. W. 35;Wilton v. Mayberry, 75 Wis. 191, 43 N. W. 901, 6 L. R. A. 61, 17 Am. St. Rep. 193;Cockrum v. West, 122 Ind. 372, 23 N. E. 140;Royal Arcanum v. Cornelius, 198 Pa. 46, 47 Atl. 1124;Lowrey v. Byers, 80 Ind. 443;Goldsmith v. Stewart, 45 Ark. 149; Words & Phrases, vol. 7, p. 6721.

Rightly understood, subrogation existed entirely independent of contract relations. It is wholly a creature of equity,--a mere means by which the substantial ends of justice may be accomplished. If a person pays off a lien claim on property for which he is not but another is liable so that such other would derive the benefit thereof, if his interest in the property were entirely relieved from such lien, and such person acts in the matter, not as a mere volunteer, but to protect his own interest in such property, such interest being legal or equitable, and either present or contingent, equity...