Tyson v. Tyson

• Decision Date: 04 November 1896
• Citation: 68 N.W. 1015,94 Wis. 225
• Parties: TYSON v. TYSON ET AL.
• Court: Wisconsin Supreme Court

94 Wis. 225

68 N.W. 1015

TYSON

v.TYSON ET AL.

Supreme Court of Wisconsin.

Nov. 4, 1896.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Virginia C. Tyson against Virginia Cabell Tyson and Juliet Catharine Tyson, infants, impleaded with George C. Houghton, to quiet title. From a judgment for plaintiff, defendants appeal. Motions by appellee to dismiss and for other relief. Motions denied, on condition the appellants perfect the appeal within 20 days.H. P. Richardson and Winkler, Flanders, Smith, Bottum & Vilas, for appellants.

Quarles, Spence & Quarles and R. B. Mallory, for respondent.

MARSHALL, J.

On the 19th day of November, 1874, Robert H. Cabell executed a trust deed, which was thereafter duly recorded, purporting to convey valuable real estate, owned by him in the city of Milwaukee, to trustees therein named, for the benefit of the grantor during his life, remainder to his daughter, plaintiff Virginia C. Tyson, during her life, and remainder over, under certain contingencies, to her children then unborn, now the infant defendants Virginia Cabell Tyson and Juliet Catharine Tyson. Thereafter such grantor died, leaving a will purporting to devise such real estate in accordance with the terms of such trust deed, and devising all the rest and residue of his property to his wife, Catharine, and the plaintiff, share and share alike. The will was duly probated, and such proceedings had that the probate court decided that the provisions thereof, devising the property in accordance with such trust deed, were void; hence, that all of the property passed under the general bequest to plaintiff and her mother. An assignment of the property was thereupon made in accordance with such decision. Thereafter the widow of the deceased quitclaimed her interest in the lands in dispute to the plaintiff, who thereupon brought this action, naming her infant daughters, Virginia Cabell Tyson and Juliet Catharine Tyson, and George C. Houghton, trustee, as defendants. The purpose of the action was to establish and quiet the title to the property in plaintiff against any claim of title by such infants under the trust deed. If such deed is valid to effect the purposes intended thereby, such infant defendants are the owners of a valuable interest in the real estate in question. George H. Richardson was duly appointed guardian ad litem of the infants, and interposed a defense based on the trust deed. Such proceedings were thereafter had that a decree was entered in favor of the plaintiff in accordance with the prayer of the complaint. The guardian ad litem, in good faith, believing the judgment to be erroneous, duly served a notice of appeal therefrom to this court. The action was commenced and prosecuted as an amicable suit up to the rendition of such judgment, but thereafter no assistance was given by the mother of the infants to aid them in securing a review of such judgment by this court. They had no general guardian or property, other than what interest they may have in the real estate in question, by reason whereof the guardian ad litem was unable to perfect an appeal in their behalf; but he did all that was in his power in that regard by duly serving and filing a notice of appeal. After such notice of appeal was served and filed, the clerk of the circuit court for Milwaukee county certified the case to this court. The undertaking has not yet been filed. The guardian ad litem now presents a petition, setting forth the facts as stated, and that he is able now to perfect the appeal by giving a proper undertaking, and moves the court, on proper notice to the adverse party, for leave to do so by filing such undertaking in this court.

Respondent, by her attorneys, moves the court, on notice, for an order dismissing the appeal (1) because no authority to take the appeal has been granted to the guardian ad litem by the circuit court or by this court; (2) because the bond or undertaking for costs was not certified with the notice of appeal. After the notice of appeal was served, Mr. Rollin B. Mallory was, on petition of plaintiff, appointed general guardian of the minors. He presents a petition, setting forth, in effect, that, after a full investigation made by him, it is his belief that there is no merit in the appeal; also reasons, not going to either the legal or equitable rights of the infants, why the title to the property should be left as decreed by the lower court. On such petition and the record he moves the court to be substituted in place of the guardian ad litem, and, in effect, that the appeal be dismissed because not for the best interest of the minors, not authorized, not taken till after the two years limited for taking the same, and after the office of the guardian ad litem had expired, and because no bond was filed to perfect the appeal as provided by law. All of the motions were heard and have been considered and decided together. Section 3039, Rev. St., provides that the time within which an appeal may be taken to obtain a review by the supreme court of any judgment in a civil action is limited to two years from the date of the entry of such judgment: provided, however, that if the person against whom a judgment is rendered is under the age of 21 years at the time of the rendition thereof, the time during which such disability shall continue, not exceeding 10 years, shall not be reckoned a part of such two years. The minor defendants come within the proviso; hence, the period limited for taking an appeal in their behalf in this case, has not yet expired. This is decisive of the motion of respondent for a dismissal of the appeal because not taken in time, and also of the objection, on that ground, to the motion for leave to perfect the appeal at this time.

But the court is asked to dismiss the appeal because not taken by leave of court, and, further, because taken after the office of the guardian ad litem had expired. An infant defendant can only appear as defendant by a guardian ad litem appointed by the court in which the action is prosecuted, or by the judge thereof. Rev. St. § 2613. The appointment of such guardian is for all the purposes of the action. It is necessary, on account of the disability of the minor defendants. For that reason, it continues till such disability ceases, unless the guardian is sooner discharged by the court. While such guardian is at all times under the control of the court, the responsibility of protecting the infant's interest wholly devolves upon him, and he is answerable in damages for negligence in...