City of Fond du Lac v. Estate of Otto

113 Wis. 39 | Wis. | 1902

WiNSLOw, J.

It was first claimed by respondent that the-circuit court acquired no jurisdiction of the appeal from the county court, because the undertaking was defective. The-undertaking, after reciting the intention of the city to appeal, proceeded as follows:

“Now, therefore, we, the city of Fond du Lac, of said, county, and W. H. Coughlin and T. E. Ahern, of said city,, do undertake, in the sum of $250, that said city of Fond dw Lac will diligently prosecute its appeal to effect, and to pay all damages and costs which may be awarded against him on-such appeal.

“Attest:

* F. A. Baetlett,

City Clerk.

J. B. Bechaud,

Acting Mayor. W. BE. CoughliN. T. E. AheeN.”

It is claimed that this is not the obligation of the city, but: simply the personal obligation of Bechaud and Bartlett; that,, in order to bind the city, it should have been signed, “The . City oe FoNd du Lac, by J. B. Bechaud, Acting Mayor.”' This contention cannot be sustained. While the method suggested would doubtless have been a technically correct methodi of execution of a corporate obligation, it is now well settled that, where it appears in the body of the instrument that the corporation is the grantor or obligor, then the instrument is well executed by the corporation if signed simply with the signature of the proper officer or officers, with his or their official title or titles; and, indeed, this method is now almost universally used. 4 Thompson, Corp. § 5090; Devlin, Deeds, § 335; Haven v. Adams, 4 Allen, 80; Morris v. Keil, 20 Minn. 531.

Proceeding to the merits of the case, the question is presented whether, under sec. 1059, Stats. 1898, as amended by ch. 50, Laws of 1899, taxes upon personal property which have been omitted during previous- years may be assessed and recovered against the estate of the deceased owner, under the circumstances shown in this case. It was held in State ex rel. Davis & S. L. Co. v. Pors, 107 Wis. 420, that personal property omitted in one year may be assessed in the following, year, under sec. 1059 aforesaid, notwithstanding the fact that it has passed out of the ownership of the person assessed, or out of existence. A different ease, however, is here presented. The property here under consideration is property which must be assessed in the assessment district where the oivner resides. Stats. 1898, sec. 1040. It must be assessed as of the 1st day of May in the year in which the assessment is made. Stats. 1898, sec. 1033. It must also be assessed to the owner, sáve as provided in sec. 1044. If in the hands of an executor or administrator on the 1st of May, it must be assessed to such executor or administrator. In but one case can it be assessed to'the estate of the deceased owner, and that is when no executor or administrator has been appointed before the 1st day of May. In the present case the fact is undisputed that before the 1st day of May, 1899, one Estabrooks had been appointed special administrator of the estate, and was in possession of the property of the estate at that date. A special administrator is doubtless an administrator, within the meaning of the word as used in sec. 1044. Hayden v. Roe, 66 Wis. 288. In tbis case, therefore, the contingency had not arisen which allows the property to be assessed to the estate. There was an administrator duly appointed on the 1st day of May, and the property must be assessed to that administrator. But the administrator did not reside in the city of Fond du Lac. He resided in another assessment district. Therefore the city could make no assessment against him of property which must be assessed at the residence of the owner. The conclusion seems inevitable that the city could not make the reassessment attempted in this case. It could not assess the administrator, because he was a nonresident. It could not assess the estate, because there was an. administrator in possession on the 1st day of May;

By the Court. — Judgment affirmed.