Wis. Trust Co. v. Wis. Marine & Fire Ins. Co. Bank

• Decision Date: 02 February 1900
• Citation: 81 N.W. 642,105 Wis. 464
• Parties: WISCONSIN TRUST CO. v. WISCONSIN MARINE & FIRE INS. CO. BANK.
• Court: Wisconsin Supreme Court

105 Wis. 464

81 N.W. 642

WISCONSIN TRUST CO.

v.WISCONSIN MARINE & FIRE INS. CO. BANK.

Supreme Court of Wisconsin.

Feb. 2, 1900.

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

Action by the Wisconsin Trust Company, administrator of Julius Luebke, against the Wisconsin Marine & Fire Insurance Company Bank. Judgment for plaintiff. Defendant appeals. Affirmed.

Prior to April, 1891, one Julius Luebke was a resident of the city of Milwaukee, in this state. On January 3, 1891, he deposited in the defendant bank $38,000, taking therefor three certificates of deposit of $10,000 each, and the fourth for $8,000; each bearing interest at 4 per cent. if left three months; to stop at the end of six months, if not renewed. His business was that of a commercial traveler selling hardware. He left Milwaukee some time in April, 1891. He was unmarried. His only heirs were the children of a deceased brother. He not having returned, and nothing having been heard from him, on April 23, 1898, Emma J. Luebke, one of his heirs, presented a petition to the county judge of Milwaukee county, setting out his residence, his disappearance, and other facts, and asked that letters of administration on his estate be issued to the plaintiff. The allegations of the petition upon which the contest in this case has arisen are as follows: “Your petitioner further shows that on or about the month of April, 1891, said Julius Luebke left the city of Milwaukee, as was his custom, he being engaged as a traveling agent in the selling of hardware, and was last seen in Leadville, Colorado, on Wednesday, April 29, 1891, when he acted queerly,--wanted to be placed in an asylum to escape his enemies; also fancied that officers were in pursuit of him. Two hand satchels identified as belonging to him were found in the D. & R. G. train on its arrival at Ogden, Utah. It is thought he must have left the train at some station between Leadville and Ogden. Your petitioner further shows that she has caused search of the most exacting nature to be made for said Julius Luebke, such as causing a notice to be given to the police department of the city of Milwaukee, which department did issue a printed circular offering a reward of $100 for any information that would lead to ascertaining his whereabouts. Attached thereto was a photograph of said Julius Luebke, and said circular was thoroughly circulated through that part of the country where said Julius Luebke was last seen; and communication has been had with all of the asylums for the treatment of the insane of which your petitioner could learn in the West, all to no purpose. And from the above facts, and the communications had by your petitioner with the persons who last saw said Julius Luebke, your petitioner believes that no one has seen him alive for more than seven years last past; that he has been absent from said state of Wisconsin, and that nothing has been heard from said Julius Luebke, for the space of seven years; and your petitioner believes the said Julius Luebke to be dead.” On the same day the county court made the usual order of publication, and thereafter such proceedings were had that on the 8th day of January, 1898, letters of administration were duly issued to the plaintiff. Thereafter the plaintiff brought this action to recover from defendant the amount of said several certificates of deposit. The defendant answered, admitting the deposits, but denied that the plaintiff was ever appointed administrator of Luebke's estate, and alleged that at the time of such appointment Luebke was alive, and that the county court had no power or jurisdiction to entertain said proceedings. A jury was waived, and on the trial the facts above stated were developed. The court found the facts in favor of the plaintiff, and from a judgment entered on the findings the defendant brings this appeal.Fish, Cary, Upham & Black, for appellant.

Miller, Noyes, Miller & Wahl, for respondent.

BARDEEN, J. (after stating the facts).

The...