Richter v. Leiby's Estate

• Decision Date: 25 September 1900
• Citation: 83 N.W. 694,107 Wis. 404
• Parties: RICHTER, COUNTY JUDGE, v. LEIBY'S ESTATE.
• Court: Wisconsin Supreme Court

107 Wis. 404

83 N.W. 694

RICHTER, COUNTY JUDGE,

v.LEIBY'S ESTATE.

Supreme Court of Wisconsin.

Sept. 25, 1900.

Appeal from circuit court, Waupaca county; Charles M. Webb, Judge.

Action by A. E. Richter, county judge of Fond du Lac county, against the estate of Jonathan Leiby. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This case was before this court at the August term, 1898, and may be found in 101 Wis. 434, 77 N. W. 745. The facts are in no way different than therein stated, except in the following particulars: After the case had been remitted to the lower court, the defendants obtained leave to file an amended answer, in which they set up that there was no such record in the county court of Fond du Lac county relating to the estate of John S. Emerson, deceased, as warranted the proceedings upon which plaintiff's claim was based. Upon the trial the entire record of the county court in that matter was introduced. From this record it appears that in May, 1887, a petition was presented showing that the testamentary trustee was dead; that there were funds in his hands; that the widow and minor son were the only persons interested; and asking that a new trustee be appointed. On May 13th the county court entered an order appointing the plaintiff guardian ad litem of the minor, and who filed his written consent so to act. A new trustee was accordingly appointed. In January, 1890, the plaintiff became county judge, and all orders in the Emerson matter after that date were made by him. The defendants objected to the introduction in evidence of all orders signed by Judge Richter, on the ground that they were void, he having been an interested party, and disqualified to make the same. At the close of the testimony both parties moved for a direction of a verdict. Plaintiff's motion was granted, and a verdict in his favor for $10,689.79 was entered. A motion for a new trial was denied, and judgment for plaintiff duly entered, from which this appeal has been taken.Lyman E. Barnes, for appellant.

D. D. Sutherland, for respondent.

BARDEEN, J. (after stating the facts).

1. The defendants strenuously attack the judgment herein on the ground that all the orders and judgments entered in the Emerson estate matter by Judge Richter are nullities, and were made and entered at a time when he was disqualified from acting. His supposed disqualification is based upon the fact that in 1887, some three years before he became county judge, he was appointed guardian ad litem for an infant in the proceeding which culminated in the appointment of a trustee for the Emerson estate in place of one deceased. The defendants appeal to two statutes as establishing such disqualification. The first is section 2447, Sanb. & B. Ann. St., which provides that “when the judge of any county court * * * shall be an executor or administrator or guardian of any ward or interested as creditor or otherwise in any question to be decided, he shall be disqualified to act in relation to that estate, or the decision of such question,” etc. We are clearly of the opinion that this section was not intended to cover, and ought not to be construed to cover, a case like this. The use of the words “executor or administrator” in connection with the words “guardian of any ward” indicate that the person meant was some trustee charged with the duty of caring for property or looking after some interest then pending, for which he must account to the court, and concerning which the court must make some decision. A guardian ad litem is not such person. He is an attorney appointed to conduct or care for a particular matter in court. He neither has charge of the person nor property of the infant, and is not accountable to the court save as an attorney is always accountable for the faithful discharge of his duties. Moreover, a reading of the whole section shows that it was not the legislative intention that such disqualification should be perpetual. The last clause provides that, when the disability no longer exists, the circuit judge who has been called...