Johannes v. Youngs

Decision Date07 January 1880
Citation4 N.W. 32,48 Wis. 101
PartiesJOHANNES, County Judge, v. YOUNGS and others
CourtWisconsin Supreme Court

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 bond executed by three of the defendants as administrators of the estate of David Youngs, deceased, and by the other defendants as sureties. The answer was a general denial. After evidence offered by the parties had been received, defendants were allowed to amend the answer, in accordance with evidence introduced by them against objection, so as further to allege that after the date of the alleged certificate and order of the county judge allowing the suit to be brought, and after service of the original answer herein, the county judge duly revoked said pretended certificate and order. Afterwards the jury, by direction of the court, returned a verdict for the defendants. The grounds upon which this direction of the court was given, are stated in the opinion. From a judgment pursuant to the verdict, plaintiff appealed.

Reversed and cause remanded.

G. G Sedgwick and Wm. F. Vilas, for the appellant.

For the respondents, there was a brief by H. G. & W. J. Turner, and oral argument by W. J. Turner.

ORSAMUS COLE, J.

OPINION

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 bring the action under section 2, ch. 104, Tay. Stats., 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 they contend 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; and they rely 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 defense, 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 the question whether proper authority had been given to prosecute the bond. And secondly, 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, and that the administrators had neglected and failed to make and file an inventory of the estate, and had failed and neglected to render an...

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