Hoffman v. Wheelock
| Decision Date | 03 March 1885 |
| Citation | 62 Wis. 434,22 N.W. 713 |
| Parties | HOFFMAN AND OTHERS v. WHEELOCK AND OTHERS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Douglas county.
John M. Olin and E. P. Vilas, for respondents.
Hiram Hayes and Pinney & Sanborn, for appellants.
This is an appeal from an order of the circuit court striking out the demurrer of the defendants to the complaint in the action as frivolous. The demurrer stated three grounds: (1) A defect of parties plaintiff, and a misjoinder and improper joinder of parties plaintiff; (2) that several causes of action have been improperly united; (3) that the complaint does not state facts sufficient to constitute a cause of action.
The learned counsel for the appellants do not undertake to sustain the first ground of demurrer above stated, even against the charge of frivolousness; but as to the other grounds, they not only undertake to sustain them against that charge, but insist that they are well taken, and should have been sustained by the court. After reading the elaborate argument made by the learned counsel for the appellants in support of the third ground of demurrer, we think we would hesitate to declare that it was frivolous. That question is not, however, before this court. Upon an appeal from an order striking out a demurrer as frivolous, which order also allows the defendant to answer upon the usual terms, this court has established the rule that the order will not be reversed unless the demurrer be in fact well taken. The rule is based upon the fact that under the statute the party may have the same relief, by permission to answer, as he would if his demurrer had been overruled upon its merits. When, therefore, the court striking out the demurrer grants the same relief that would be granted on overruling the same, upon argument to reverse such order upon an appeal to this court, when it is evident such demurrer must be overruled upon its merits, could only have the effect to protract litigation at the expense of both parties, without the possibility of any beneficial result to either. Section 2681, Rev. St.; Diggle v. Boulden, 48 Wis. 477-482;S. C. 4 N. W. REP. 678;Lerdall v. Insurance Co. 51 Wis. 426-430;S. C. 8 N. W. REP. 280;Magdeburg v. Uihlein, 53 Wis. 165;S. C. 10 N. W. REP. 363;Krall v. Libbey, 53 Wis. 292-295;S. C. 10 N. W. REP. 386.
In considering the demurrer of the appellants to the complaint, we must proceed as though the sufficiency of the demurrer was the only question before us. We will first consider the third ground of demurrer, viz., that “the complaint does not state facts sufficient to constitute a cause of action.” The cause of action clearly intended to be stated in the complaint is substantially as follows: The plaintiffs are the heirs at law of Sextus Hoffman, deceased, who died intestate in September, 1873; that at the time of his death he was the owner of certain real estate, described in the complaint, situate in the county of Douglas, in this state, giving the value thereof; that Leonard F. Wheelock was duly appointed administrator of the estate of said Hoffman, June 7, 1875; that he caused an inventory and appraisement of said estate to be made; that he petitioned the county court of Douglas county for leave to sell the real estate of the deceased to pay the debts of the deceased, and that he obtained a pretended license from said court to sell the same, but which, it is alleged, was void, because not signed by the county judge; that by virtue of such license he pretended to sell said real estate; that he made a report of sale to said court, which court, on August 3, 1880, confirmed said sale, and directed said Wheelock, as such administrator, to convey such real estate to the purchaser at such sale; and that on the twenty-sixth day of August, 1880, said Wheelock, as such administrator, executed a deed for said real estate to Henry L. Woodward, which was duly acknowledged and recorded in the office of the register of deeds of said county of Douglas on the twenty-sixth day of August, 1880. The complaint also alleges that Woodward and wife, by Leonard F. Wheelock, his attorney in fact, conveyed all the lands described in the deed of Wheelock as administrator to Woodward, to Hamilton Peyton, of Minnesota, August 25, 1882; which deed was also duly recorded in the office of the register of deeds of Douglas county, for the nominal consideration of $10. And it further alleges that since the pretended sale of said lands to Woodward, the said Leonard F. Wheelock leased some part of said real estate to the defendant J. A. Hall, and that Hall sublet the same to the defendant E. H. Badgero, who was in possession as tenant of Hall at the time of the commencement of the action.
There are numerous allegations in the complaint of fraud on the part of Wheelock as administrator of said estate, and in the pretended sale of such real estate, which, if true, clearly show that the pretended sale to Woodward was a sham; that the title of Woodward, if he obtained any by such sale, was held by him in trust for said Wheelock; that Woodward never paid anything for said lands; that the conveyance from Woodward to Peyton was without any consideration; that if the title ever vested in Peyton under said deed, it was held in trust for Wheelock; and that Woodward, Peyton, and the tenants had full knowledge of the fraudulent character of the pretended sale made by Wheelock. The complaint also charges that the proceedings and sale were void because the license to sell was not signed by the judge of the court, and because no guardian ad litem was appointed by the county court for the minor heirs of the deceased, on the hearing of the petition for sale. It is unnecessary to a full understanding of the case to state more particularly the facts alleged, showing the fraudulent character of the whole proceedings on the part of Wheelock as administrator, as it is not seriously contended on the part of the appellants that the facts alleged in the complaint are not sufficient to avoid the sale and administrator's deed, as well as the conveyances to the other defendants.
The point made by the learned counsel for the appellants upon this ground of demurrer is that the facts alleged by the complaint show that the administrator's deed is absolutely void, and is therefore no cloud upon the title of the plaintiffs; and not having alleged facts showing themselves in the actual possession of the lands in controversy, this action cannot be sustained, and that their remedy, if any, must be by action of ejectment. In this we think the learned counsel are mistaken. The real gravamen of the action set out in the complaint of the plaintiffs, and upon which they rely for relief, is not the irregularities in the proceedings and sale, but the fact of actual fraud on the part of the administrator. If it should turn out on a trial of the action that all the proceedings were regular and the deed valid, so far as their regularity is concerned, still, if the plaintiffs establish by their evidence the...
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Randall v. Johnstone
...of action can only be joined when all the causes are common to all of the parties. Rev. Codes, § 6877, subdiv. 7; Hoffman v. Wheelock, 62 Wis. 434, 22 N.W. 713, 716; Mosier v. Beale, 43 F. 358 (on California 1 Abbott, Pleadings, 772. In the absence of the evidence -- it will be presumed tha......
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Midland Terra Cotta Co. v. Edward Schuster & Co.
...be united unless all the parties to the action are affected by each cause pleaded. Greene v. Nunnemacher, 36 Wis. 50;Hoffman v. Wheelock, 62 Wis. 434, 22 N. W. 713, 716;Hughes v. Hunner, 91 Wis. 116, 64 N. W. 887;Blakely v. Smock, 96 Wis. 611, 71 N. W. 1052;Hawarden v. Youghiogheny & L. C. ......
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Hughes v. Hunner
...306), which are improper to be joined, because neither of them affects all the parties to the action (Rev. St. § 2647; Hoffman v. Wheelock, 62 Wis. 434, 22 N. W. 713, 716). On this ground the order sustaining the demurrer is right. The order being right, must be affirmed, even if the reason......
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Crowley v. Hicks
...capacity, and not to be made out of his own property; as, for example, it might be made de bonis testatoris.” See Hoffman v. Wheelock, 62 Wis. 434, 22 N. W. 713, 716. The ground of demurrer assigned that the action was not commenced within the time limited by law will not be considered, bec......