Monart Motors Co. v. Home Indem. Co.

• Decision Date: 08 October 1957
• Citation: 1 Wis.2d 601,85 N.W.2d 478
• Parties: MONART MOTORS CO., a Wisconsin corporation, Appellant, v. HOME INDEMNITY CO., a foreign corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 478

85 N.W.2d 478

1 Wis.2d 601

MONART MOTORS CO., a Wisconsin corporation, Appellant, v. HOME INDEMNITY CO., a foreign corporation, Respondent.

Supreme Court of Wisconsin.

Oct. 8, 1957.

Hanley, Wedemeyer & Petersen, Robert F. Cavanaugh, Milwaukee, for appellant.

Fairchild, Foley & Sammond, David E. Beckwith, J. G. Hardgrove, Milwaukee, for respondent.

FAIRCHILD, Justice.

Because we reach the conclusion that the circuit court should have overruled Monart's demurrer to the first affirmative defense and ordered judgment dismissing the complaint, it will be unnecessary to discuss the propriety of the circuit court's action in directing a verdict for defendant.

Apparently the parties agreed that the circuit court, in ruling upon the demurrer, should have the county court file before it. It appears that the assets of the Boeing estate were not of great value. The petition for administration made by Monart alleges that the value of the assets did not exceed $1,000. A later petition by Boeing's mother asked for appointment of an administrator different from the one nominated by Monart and asserted that the value did not exceed $15,000 and the court so found when it appointed the administrator and specified the amount of the bond. The record suggests, at least, that in large measure the two petitioners had the same property in mind, but place different valuations upon it. One portion consisted of household furniture which Monart had caused to be sold for $1,000. The administrator collected life insurance proceeds and a bank balance which totalled $1,009.42. We gain the impression that Monart's practical purpose in prosecuting the claim may have been simply to establish its right to retain the proceeds of the sale.

The hearing on the objection to the claim took place June 22, 1955. Monart's auditor testified and his report was admitted in evidence. There was testimony by two of Monart's officers and by Bruno. While the evidence submitted by Monart in county court did not include the testimony of several employees and customers nor certain documents which were presented at the trial in circuit court, it was offered to establish the alleged defalcation. At the close of testimony in county court the administrator moved that the claim be allowed only at the amount of the unpaid checks on 'the grounds that the rest of the claim has not been proved.' The court orally granted the motion and entered an order disallowing the portion of the claim beyond the amount of the checks. The recitals at the beginning of the order set forth 'the evidence on the part of the claimant having been fully presented and no evidence having been presented by the administrator.' Findings of fact were also set forth. There was no finding that defalcation did not occur, but there was one that 'no competent evidence' of any liability other than that on the checks had been presented.

Home Indemnity argues that because of the relationship existing between it and Monart under the bond, the disallowance of the claim by the county court determines Monart's claim against Home Indemnity. This is said to be true because if Home Indemnity paid Monart under the bond, it would acquire a right against the estate by subrogation; where Monart has attempted to establish a claim against the estate and suffered an adverse determination, it has had its day in court and, having failed to establish any claim, is concluded from establishing the same facts in an action against Home Indemnity.

On the other hand it is Monart's position (1) that the county court did not have jurisdiction to determine the claim because it was for a tort and (2) that the disallowance was in any event only a nonsuit and did not bar a subsequent action on the same cause.

It is true that the county court would not have had jurisdiction of a purely tort action. But it has been established that where the facts which give rise to a tort cause of action against a decedent are also the basis of a cause of action upon implied contract, plaintiff may waive the tort and proceed upon the implied contract by filing a claim in county court. Payne v. Meisser, 1922, 176 Wis. 432, 440, 187 N.W. 194; School District No. 1, Town of Cato, Manitowoc County, v. Brennan, 1940, 236 Wis. 91, 294 N.W. 558. In the latter case, a school district brought action to recover funds allegedly converted by its deceased treasurer. The court conceded it could have filed its claim in county court although it was not required to. A claim against an estate is a proper remedy for alleged conversion. In re Estate of Abddullah, 1934, 214 Wis. 336, 341, 252 N.W. 158.

We do not view the order of the county court as a dismissal without prejudice. The order did not specify that it was without prejudice, and that effect would need to be given, if at all, by implication from the fact that the court orally and in its findings spoke in terms of insufficiency of the evidence to establish the claim, rather than in terms of resolving conflicts in evidence.

Gale v. Best, 1865, 20 Wis. 44, was an action in circuit court. Defendant proved the disallowance of the same claim in county court. Plaintiff attempted to prove that the disallowance was based on the ground that the nature of the claim required that it be prosecuted in circuit court. This court said: 'It is very clear to us that the adjudication of the county court upon this claim is a bar to...