Jones v. Mehlberg

• Decision Date: 06 December 1932
• Citation: 210 Wis. 6,245 N.W. 650
• Parties: JONES, COUNTY JUDGE, FOR USE AND BENEFIT OF MCKEE, v. MEHLBERG ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 6

245 N.W. 650

JONES, COUNTY JUDGE, FOR USE AND BENEFIT OF MCKEE,

v.MEHLBERG ET AL.

Supreme Court of Wisconsin.

Dec. 6, 1932.

Appeal from Circuit Court, Oconto County. Motion to dismiss appeal. Motion granted.

Action by H. F. Jones, county judge of Oconto county, for the use and benefit of William F. McKee, administrator de bonis non of the estate of Samuel McKee, deceased, against A. H. Mehlberg and the United States Fidelity & Guaranty Company of Baltimore, Md., a foreign guaranty company, to recover damages unaccounted for by A. H. Mehlberg, as administrator of the estate of Samuel McKee, deceased. The United States Fidelity & Guaranty Company applied to the court for an order making William F. McKee a party defendant. From an order denying the application, the United States Fidelity & Guaranty Company appeals.Allan V. Classon, of Oconto, for appellant.

Megan & Megan, of Oconto, and Eberlein & Larson, of Shawano, for respondents.

OWEN, J.

One A. H. Mehlberg was appointed administrator of the estate of Samuel McKee, deceased, by the county court of Oconto county, and gave bond as such administrator with the United States Fidelity & Guaranty Company of Baltimore, Md., as surety. He was discharged as such administrator, and William F. McKee was appointed administrator de bonis non of the estate. This action is brought by the county judge to recover on the bond given by Mehlberg as such administrator. Upon a petition setting forth that the default of the administrator, if any, was the result of a conspiracy between Mehlberg and William F. McKee, that William F. McKee has received and now holds the moneys of the estate for which the administrator, Mehlberg, has not accounted, and that, if judgment be rendered in this action against the surety it will have an action over against said McKee, the surety made application to the court to have said McKee brought in as a party defendant. This application was denied by the court, and the appeal is from the order of denial. Respondent moves to dismiss the appeal.

[1][2] While the case of Town of Washburn v. Lee, 128 Wis. 312, 107 N. W. 649, may be some authority for sustaining the right of the surety to have McKee made a party defendant, it does not follow that the denial of the petition is an appealable order. Whenever an appeal is contemplated from an order, section 274.33, Stats., should be consulted for the purpose of determining whether it is an order from which an appeal will lie. This order does not prevent a judgment from which an appeal might be taken upon which appeal the order denying the petition may be reviewed as was the case in Town of Washburn v. Lee. Where a person not a party to an action moves the court to be made a party, such a proceeding is special, and an order denying the application is appealable, because the petitioner cannot appeal from the judgment and thereby test the denial of his application. National Distilling Co. v. Seidel, 103 Wis. 489, 79 N. W. 744. Because one who is a party to the action may appeal from the judgment and secure a review of all intervening orders affecting the judgment (Schlecht v. Anderson, 202 Wis. 305, 232 N. W. 566;Milwaukee County v. Milwaukee Western Fuel Co., 204 Wis. 107, 235 N. W. 545), an order denying his motion to bring in other parties does not determine the action. Such orders have uniformly been held nonappealable. Reinhart...