Randall v. Lonstorf

• Decision Date: 14 November 1905
• Citation: 126 Wis. 147,105 N.W. 663
• Parties: RANDALL v. LONSTORF ET AL.
• Court: Wisconsin Supreme Court

126 Wis. 147

105 N.W. 663

RANDALL

v.LONSTORF ET AL.

Supreme Court of Wisconsin.

Nov. 14, 1905.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by John Randall, guardian of Emma Lonstorf, an insane person, against Margaret Lonstorf and others. From a judgment of dismissal, plaintiff appeals. Reversed.

This is a civil action for damages resulting from an alleged unlawful conspiracy. The complaint, after alleging the due appointment and qualification of the plaintiff as guardian of one Emma Lonstorf, an insane person, and the adjudication of her insanity on July 10, 1903, alleges in substance that said Emma Lonstorf and the defendant Otto R. Lonstorf were married July 16, 1894, and lived happily together several years in Milwaukee; that said Otto is of a weak and irresolute character, and that the defendant Margaret Lonstorf is the widow of one Nicholas Lonstorf, deceased, and is a person of great wealth and imperious will, and is the mother of the other nine defendants, all of whom, excepting the defendant George J. Lonstorf, are dependent upon her for support, and completely subject to her wishes; that shortly after Emma's marriage with Otto the other defendants maliciously conspired together for the purpose of separating said Emma from Otto, depriving her of her support and of the necessaries of life, and inducing Otto to desert her and remain outside of the state of Wisconsin and beyond the reach of civil or criminal process issuing from the courts of said state; that in pursuance of this conspiracy they afterwards secured Otto's discharge from various places of employment, represented to him that Emma was unfaithful to him, and urged him to desert her, furnished him with large sums with which to travel abroad, and threatened that said Margaret would disinherit him, so that finally said Otto joined the other defendants in the execution of said unlawful conspiracy; that subsequent to the plaintiff's appointment as guardian all of the defendants continued in the prosecution of this unlawful conspiracy to keep the defendant Otto out of the state and beyond the jurisdiction of the courts of this state, and to keep Emma in destitution, and to force her to permit Otto to obtain a divorce in some foreign jurisdiction where she could not, on account of her poverty, appear or protect her rights; that in pursuance of said conspiracy said Otto commenced a divorce action in the state of Michigan, which was afterwards dropped, and after Emma's commitment to the Milwaukee Hospital for the Insane commenced a divorce action in the state of Washington in the month of December, 1903, the complaint in which action was verified by Otto and contained false statements of fact, and entirely concealed the fact of Emma's insane condition for the purpose of imposing on said court; that the remaining defendants have assisted said Otto by advice and contributions of money in said attempt to obtain a divorce for the purpose of carrying out said conspiracy, that said Emma has now, and for a long time last past has had, a good cause of action for divorce against said Otto for willful desertion, cruel and inhuman treatment, and failure to support; that said Emma has no property, and is supported at the Milwaukee County Hospital for the Insane as a pauper, and that by the carrying out of said conspiracy as aforesaid said Emma has been deprived of her legal rights aforesaid, to her damage in the sum of $250,000, for which sum judgment is demanded. The defendants, except Otto, appeared jointly and answered, denying all the allegations of conspiracy. The cause came on for trial, and a demurrer ore tenus to the complaint was sustained, and judgment of dismissal entered, from which the plaintiff appeals.Charles H. Phillips (McElroy & Eschweiler, of counsel), for appellant.

Fiebing & Killilea, for respondents.

WINSLOW, J. (after stating the facts).

While the right of the general guardian to maintain this action in his own name was not challenged in the trial court, the query was raised in this court whether the cause of action, if any, was not one in favor of the ward alone, which must be prosecuted by her and not by the guardian. Whatever might be the conclusion were the question a new one, it is foreclosed by the decision in the case of Plath v. Braunsdorff, 40 Wis. 107, where the exact question was raised, and it was held that the objection went only to the competency of the guardian to maintain the action, and, being in abatement only, was unavailable to the defendant after having...