Hepp v. Huefner

• Citation: 20 N.W. 923,61 Wis. 148
• Parties: HEPP, BY HER GUARDIAN, ETC., v. HUEFNER, ADM'R, ETC.
• Decision Date: 14 October 1884
• Court: Wisconsin Supreme Court

61 Wis. 148

20 N.W. 923

HEPP, BY HER GUARDIAN, ETC.,

v.HUEFNER, ADM'R, ETC.

Supreme Court of Wisconsin.

Filed October 14, 1884.

Appeal from circuit court, Buffalo county.

The defendant's intestate died in March, 1881. The plaintiff, Elizabeth Hepp, presented to the proper county court a claim against his estate, founded upon a promissory note for $1,000, signed by the intestate, dated December 27, 1880, and payable to her five years after date, without interest. The defendant voluntarily interposed an answer to this claim, in which (1) he denies that the intestate ever delivered the note to the plaintiff; (2) he alleges that the note was signed without consideration, and the intestate never received any consideration thereafter for the same; (3) that when he signed it the intestate was intoxicated, and the plaintiff took undue advantage of him and obtained his signature to the note, without his being able to understand the nature and obligation of the instrument, and that he never thereafter ratified it; (4) “that said note was signed with the express understanding that said plaintiff should work for and remain with said deceased for a period of five years from the date thereof, and if said plaintiff would not work the full term of five years the note to be null and void, and that said plaintiff did not work the full term of five years, but only three or four months thereof;” (5) that the estate of the intestate is insolvent; and (6) that the claim is fictitious, and a fraud upon the creditors of the estate. The whole answer is made on information and belief. In June, 1882, a hearing was had in the county court, which resulted in the disallowance of the claim. The plaintiff thereupon appealed to the circuit court from the order of disallowance. The notice of such appeal is signed by her attorney. In October, 1882, the defendant moved the circuit court to dismiss the appeal. The motion was based on an affidavit showing that the plaintiff was a minor; that she would not reach the age of 21 years until February 10, 1883; and that no guardian had been appointed to prosecute the action for her. Before the hearing of the motion, the plaintiff procured the appointment by a court commissioner of Frederick Hepp as such guardian, without any notice to the defendant; and, that fact appearing, the circuit court denied the motion to dismiss the appeal. The cause was tried in the circuit court, and the defendant introduced testimony tending to negative the delivery of the note by the intestate to the plaintiff, and to show that there was never any consideration for the note; also tending to show that the deceased was intoxicated when he signed it, and was mentally incompetent to make a valid contract, and that the estate is insolvent. During the trial the plaintiff claimed that the fourth subdivision of the answer above quoted admits the delivery of the note. At the close of the testimony, counsel for defendant asked leave to amend the answer by striking out that paragraph. Leave was refused. The court directed a verdict for the plaintiff for $1,000, which the jury rendered accordingly. A motion by defendant for a new trial was denied on condition that plaintiff remit $130.40 from the verdict. This is understood to be the discount on the note from the date of the judgment until it should become due by its terms,--the note not drawing interest. The condition was complied with, and judgment was entered accordingly on March 1, 1884. The defendant appeals from the judgment.

Theodore Buehler, for respondent.

A. Finkelnburg & Son and Wm. Gale, for appellant.

LYON, J.

The assignment of errors herein and the arguments of counsel present three questions for determination. These are: (1) Should the appeal have been dismissed because it was taken before a guardian ad litem for the plaintiff was appointed? and, if not, (2) should leave have been granted to amend the answer by striking out the fourth paragraph thereof? and (3) does the evidence sustain the direction to the jury to find a verdict for the plaintiff? These...