Johannes v. Youngs

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtCOLE
Citation4 N.W. 32,48 Wis. 101
Decision Date07 January 1880

48 Wis. 101
4 N.W. 32


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.


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...

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5 cases
  • Town of Beloit v. Heineman
    • United States
    • United States State Supreme Court of Wisconsin
    • 8 Mayo 1906
    ...distinctively matter in abatement, and, unless expressly pleaded, is waived. Milwaukee County v. Hackett, 21 Wis. 613;Johannes v. Youngs, 48 Wis. 101, 4 N. W. 32;City of Milwaukee v. Zoehrlaut, 114 Wis. 276, 90 N. W. 187;Bunker v. City of Hudson, 122 Wis. 43, 53, 99 N. W. 448. The further o......
  • State v. Petersen
    • United States
    • United States State Supreme Court of Iowa
    • 11 Abril 1900 it is in the usual form of indictments in such cases, and is not vulnerable to the objection stated. State v. Casford, 76 Iowa, 330, 4 N. W. 32. The assault is charged as a part of the crime of rape, and, as there can be no rape without an assault, there is no objection to charging it as......
  • Turner v. Burnell
    • United States
    • United States State Supreme Court of Wisconsin
    • 7 Enero 1880
    ...retains; and, having secured this advantage, it would not seem to be in [48 Wis. 229] accord with the principles of fair dealing to suffer [4 N.W. 32] him to repudiate the arrangement and attack the bona fides of the assignment to the garnishee. We do not deem it necessary to consider the q......
  • Johannes v. Youngs
    • United States
    • United States State Supreme Court of Wisconsin
    • 7 Enero 1880
    ...4 N.W. 32 48 Wis. 101 JOHANNES, County Judge, v. YOUNGS and others Supreme Court of WisconsinJanuary 7, Argued: December 19, 1879 APPEAL from the Circuit Court for Kewaunee County. This action was brought in the name of the county judge of Kewaunee county, upon the general administration bo......
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