Johannes v. Youngs

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: COLE
• Citation: 4 N.W. 32,48 Wis. 101
• Parties: FRED. JOHANNES, AS COUNTY JUDGE, ETC., APPELLANT, v. GEORGE W. YOUNGS AND OTHERS, RESPONDENTS.
• Decision Date: 07 January 1880

48 Wis. 101
4 N.W. 32

FRED. JOHANNES, AS COUNTY JUDGE, ETC., APPELLANT,
v.
GEORGE W. YOUNGS AND OTHERS, RESPONDENTS.

Supreme Court of Wisconsin.

Filed January 7, 1880.

Appeal from Kewaunee circuit court.

[4 N.W. 32]

G. G. Sedgwick and Vilas & Bryant, for appellant.

H. G. & W. J. Turner and R. L. Wing, for respondents.

COLE, J.

The circuit court directed the jury to find a verdict in favor of the defendants. The grounds or reasons for this direction, as stated in the bill of exceptions, are: First, that there was no such authority to bring the action granted by the county judge, as is required by the statute; second, that if authority was granted it was authority to

[4 N.W. 33]

bring the action under section 2, c. 104, T. R. S., while the action is, in fact, brought under section 4 of that chapter; and third, that the authority was not granted to a creditor of the estate within the meaning of the statute.

In regard to the first reason assigned for the ruling of the court below the counsel for the plaintiff give, as it appears to us, two very satisfactory answers: First, that the objection that permission or leave was not given by the county judge to prosecute the bond was only matter in abatement, not in bar to the action, and must be specially pleaded in the answer to be available, relying upon the decisions in Dutcher v. Dutcher, 39 Wis. 651;Board of Supervisors v. Van Stralen, 45 Wis. 675, in support of this position. It is most favorable to the defendants to adopt that view, and to hold that the objection of want of authority to sue the bond is in the nature of a plea in abatement and that to entitle a party to the benefit of such a defence he must specially set it up in his answer at the proper stage of the cause. Here there was a general denial only, raising the question as to the liability of the defendants and, not putting in issue whether proper authority had been given to prosecute the bond. And, second, counsel insist that the evidence produced on the trial shows that leave or permission was granted by the county judge to prosecute the bond before action was brought upon it. The evidence upon that point shows that application by petition was made to the probate court by Mr. Dickey, representing that he was a creditor of the estate; that the administrators had neglected and failed to make and file an inventory of the estate; had failed and neglected to render an account as required by law, and asking that leave be granted to bring an action...