Clark v. Sloan

• Court: Wisconsin Supreme Court
• Writing for the Court: WICKHEM
• Citation: Clark v. Sloan, 215 Wis. 423, 254 N.W. 653 (Wis. 1934)
• Decision Date: 08 May 1934
• Parties: CLARK, COUNTY JUDGE, ET AL. v. SLOAN ET AL.

215 Wis. 423

254 N.W. 653

CLARK, COUNTY JUDGE, ET AL.

v.SLOAN ET AL.

Supreme Court of Wisconsin.

May 8, 1934.

Appeal from a portion of a judgment of the Circuit Court for Juneau County; R. S. Cowie, Circuit Judge. Affirmed.

The action was brought on August 17, 1928, by Robert P. Clark, as county judge of Juneau county, Wis., W. G. Hosig, as administrator de bonis non of the estate of Charles E. Nance, deceased, Della Ake, Daisy Workman, and Mary Etta Van Meter, plaintiffs, against Hortense N. Sloan, formerly known as Hortense N. Nance, L. S. Marsh, Scott Huntley, Murray B. Huntley, and Maud Huntley Jenks, defendants. This is an action against an administratrix and her bondsmen. The action was tried to the court, and findings of fact made and entered. Judgment was entered upon the findings in favor of plaintiffs and against the appealing defendants, as follows: against Hortense Sloan in the sum of $3,673.70, and against Scott Huntley, Murray B. Huntley, Maud Huntley Jenks, L. S. Marsh, and Hortense Sloan in the sum of $3,040.59. Defendants appeal.

The facts essential to an understanding of the issues will be stated in the opinion.Hill & Miller, of Baraboo, for appellants.

Loomis & Roswell, of Mauston, and J. T. Dithmar, of Elroy, for respondents.

WICKHEM, Justice.

Charles E. Nance died on March 17, 1919, intestate. On July 26, 1909, he married defendant Hortense Sloan, who, for purposes of convenience, will hereafter be referred to by this name. At this time decedent had no property, but after his marriage the couple moved to Elroy, engaged in business, and accumulated some estate. After his death, Hortense Sloan proceeded to settle his estate in the county court of Juneau county. The petition for final settlement was filed November 18, 1919, and final judgment was entered December 16, 1919. The estate consisted of some real estate, not involved on this appeal, and a residue of personal property of the value of $965.90. As administratrix, Hortense Sloan gave a bond in the penal sum of $3,300, with defendant L. S. Marsh as one and C. S. Huntley as the other surety. Huntley died in 1923. Final judgment of distribution in his estate was entered July 3, 1923, and the estate divided among his legatees and devisees.

On October 25, 1928, plaintiffs Della Ake, Mary Etta Van Meter, and Daisy Workman filed separate petitions in the county court of Juneau county, asking to set aside the decree of the court of December 16, 1919, upon the ground that Della Ake was the widow of Charles E. Nance, and Mary Etta Van Meter and Daisy Workman his daughters; that Hortense Sloan had fraudulently induced the court to enter the decree by concealing the fact of the existence of a lawful widow and children of Nance. The facts which Della Ake and Mary Etta Van Meter and Daisy Workman assert to exist and to support their claims are as follows:

For some time prior to November 16, 1895, Charles E. Nance and plaintiff Della Ake, then known as Della Payne, were residents of Lawrence county, Ohio. On this date they were married. On January 23, 1896, Mary Etta Van Meter was born. This child was conceived before marriage, and was the natural child of Nance and Della Payne. The child was born at the home of Nance and his parents. The lying-in expenses were paid for by Nance, and the plaintiff Della Nance, together with the daughter, lived in the home of Nance and his parents, with him, for about nine months following the birth of Mary Etta. In the fall of 1896, or about nine months after the birth, Nance deserted his wife and child and was gone from the vicinity for nearly two years. Nance returned to Ohio in the fall of 1898, and resumed relations with his wife. Daisy Workman was born to Charles and Della Nance in March, 1899. Nance again deserted his wife and never returned to her. He went to Hillsboro, Wis., where he lived with two brothers and a sister. As heretofore stated, he later married Hortense Sloan, without disclosing to her his previous marriage. Meantime information had come to Della Nance, in the year 1900, through the mother of Charles Nance, that Charles had died at Hillsboro due to injuries received from the kick of a horse. Believing the story to be true, Della Nance in form married William Ake, with whom she lived and had other children, until Ake died in 1927. During this period Mary Etta Van Meter and Daisy Workman did not live or associate together, and due to the unfortunate circumstances of her birth, contacts were not maintained between Della Ake and Daisy Workman with Mary Etta. The evidence upon which the claim of fraud against Hortense Sloan rests is that during the course of administration of the Nance estate, Daisy Workman, having received a report that Charles E. Nance was alive, wrote to him and received a reply from Hortense Sloan. According to Daisy Workman, she wrote that she had heard that her father was alive and would like to hear from him. Her statement was that she received an answer from Hortense Sloan that her father had died in March. She received this letter in the fall of 1919. The letter disclosed that Hortense Sloan claimed to be her father's widow. Daisy paid no further attention to the matter, and made no further investigation until June or July, 1927. Hortense Sloan admits receiving the letter. Her version of its contents and her reply are somewhat different. She states that she received a letter from a girl in Ohio, signing her name as Daisy Ake, stating that she was a daughter of Charles Nance; that she had seen an attorney and was entitled to a part of the estate; and that she had a sister. Hortense Sloan claims to have written to Daisy, at the suggestion of her attorney, stating that if Daisy could prove she was a legal heir, she was entitled to a share in the estate, and that her sister was entitled to as much as she was. The failure of Hortense Sloan to investigate or to report the contents of this letter to the court was claimed to constitute a fraud upon the court.

After a full hearing, the county court filed findings of fact and conclusions of law. The court found: “That the administratrix, HortenseN. Nance, now known as Hortense N. Sloan, falsely and fraudulently retained and failed to disclose to Daisy Nance, now Daisy Workman,” the fact that her father had died leaving an estate in which she was entitled to share. The court further found that Hortense Sloan made no investigation to determine who the heirs of Charles E. Nance, deceased, were and “erroneously and fraudulently represented herself to the county court of Juneau County, Wisconsin, to be the widow of Charles E. Nance, deceased, and his sole and only heir at law and purposely failed and neglected to present to the county court of Juneau County, Wisconsin, any evidence as to who might be the true and correct and sole and only heirs at law of said Charles E. Nance, deceased.” Upon these findings and upon findings establishing the widowhood of Della Ake, the relation of Mary Etta Van Meter and Daisy Workman to Nance, and absence of laches, it was ordered and adjudged that the decree of December 16, 1919, allowing the final account of Hortense Sloan and assigning the real estate and personal property of said Charles E. Nance to her, was null and void and was vacated and set aside. Thereupon W. G. Hosig was appointed administrator de bonis non. It was further adjudged that Hortense Sloan account and pay into court all sums and property received by her in the distribution of the estate of Charles Nance. In this action the trial court's findings are substantially identical, so far as the principal issues are concerned.

[1] It is earnestly contended, and ably argued, that the findings of the trial court are not sustained by the evidence. We are of the opinion that the contention is not sound, and further that it is immaterial, for the reason that the judgment of the county court, standing unreversed, is res adjudicata as between Della Ake and her daughters, on the one hand, and the administratrix and her sureties, on the other. The issues were identical, were there fully tried, and cannot be relitigated in this action. That the judgment of the county court is binding upon the sureties, although not parties in the proceedings, is well established. Meyer v. Barth, 97 Wis. 352, 72 N. W. 748, 65 Am. St. Rep. 124;Holden v. Curry, 85 Wis. 504, 55 N. W. 965;Schoenleber v. Burkhardt, 94 Wis. 575, 69 N. W. 343;Shepard v. Pebbles, 38 Wis. 373.

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