4 N.W.2d 150 | Wis. | 1942
Action by Mary Powers Hicks against O. J. Hardy and others for equitable relief from proceedings in probate in the county court of Winnebago county. From a judgment dismissing the complaint for want of jurisdiction and from an order vacating the service by publication upon nonresident defendants, the plaintiff appeals. The facts are stated in the opinion. The case is an appeal from a judgment dismissing the complaint entered upon the sustaining of a demurrer thereto in an action brought in the circuit court for Winnebago county on the ground that the court was without jurisdiction of the subject of the action, and from an order vacating the service by publication upon certain nonresident defendants. It appears from the complaint that the plaintiff is the widow of John Hicks, who died a resident of Winnebago county leaving property therein and a will, and that the defendant Hardy was duly appointed executor of the will and trustee thereunder. While the complaint does not expressly so say it follows from the above that the will was admitted to probate by the county court of Winnebago county and that the estate of Hicks was administered in said county court. The complaint alleges that two of the defendants conspired to and did induce the plaintiff by fraudulent representations to elect to take under the statute as the widow of her deceased husband instead of under his will which established a trust *13 for her benefit to her great damage. By the prayer of the complaint "the plaintiff demands judgment that in equity said alleged election be vacated and rescinded and that the plaintiff be restored to her rights under the will . . . and for judgment for damages for the injury sustained . . . by reason of the fraud and conspiracy" of the defendants. By a second cause of action reaffirming the allegations of the first the plaintiff demands an accounting by the defendant trustee as trustee under the will. Two of the defendants, one trustee under the will and the other alleged to have been the attorney for the trustee and for the plaintiff in the probate proceedings, demurred separately on the ground that the court was without jurisdiction of the subject of the action. The court sustained the demurrers and entered judgment dismissing the complaint. The other defendants, who are nonresidents of the state and who are alleged to have received property which the plaintiff claims should have been applied for her benefit under the will, moved to vacate the service upon them which was procured by publication, and the court granted their motion. From the judgment of dismissal and from the order vacating the service upon the nonresident defendants, the plaintiff appeals.
The claim of the plaintiff is that as the complaint states a fraudulent conspiracy practiced on the plaintiff by the demurrants, it states a tort action against them and that the circuit court has jurisdiction to try such an action. In support of this claim the brief of plaintiff cites many cases and relies particularly upon the case of Morse Chain Co. v. T. W. Meiklejohn,Inc.,
"One induced by fraud to enter into a contract may take any one of three courses: (1) Rescind, restore the pre-existing status, and sue at law to recover his payments; (2) offer to restore the status, keep his offer good, sue in equity to rescind and recover his payments; (3) affirm the contract and sue for the damages resulting from the fraud." *14
Passing the point that the instant case is not one charging fraud in inducing a contract the defendant in that case by counterclaim affirmed the contract and sued for its damages. To make that case apply in principle to the instant case the plaintiff to sue at law would either have to affirm her election to take under the will or restore the pre-existing status. But she has expressly repudiated her election in her complaint, and the complaint shows that she is utterly unable to restore the pre-existing status. Thus the facts stated do not state an action at law for fraud but only state an action in equity; and the action in equity must be prosecuted in the county court, if that court has jurisdiction as will hereinafter be more particularly shown. This rendered inapplicable the rule invoked by the plaintiff that when a complaint demurred to for insufficiency of facts states a case at law it will be upheld although the prayer is for relief in equity. Here a case at law is not stated, but only a case in equity.
Examination of the other cases relied on by plaintiff's counsel to support the jurisdiction of the circuit court discloses that only two of them give any color to his contention that the circuit court has jurisdiction in the instant case. One of them is Royal Indemnity Co. v. Sangor,
The other case is Ludington v. Patton,
It is well settled by the law of this state that county courts as courts of probate have full equity jurisdiction over the administration of estates disposed of by will, including equitable jurisdiction to vacate orders and judgments made and rendered in administering such estates that were induced by fraud. A full exposition of such jurisdiction is given inEstate of Bailey,
It is equally well established that where the county court has jurisdiction in probate matters the circuit court is without jurisdiction. Cawker v. Dreutzer,
It appearing that the county court had jurisdiction of the cause of action alleged, sec. 269.52, Stats., comes into play. The mandate of that statute is that when a court in which an action is brought has no jurisdiction to grant relief sought the court shall certify the action to some other court that has jurisdiction. Under that statute the circuit court instead of dismissing the complaint could, and on its attention being called to the statute by the plaintiff's counsel should, have certified the case to the county court. However, the plaintiff's counsel expressed no desire to have the case so certified, counsel for the defendants made no objection to such certification and here expressed willingness to such certification. In this situation we perceive no prejudicial error in entering the judgment of dismissal. The judgment of dismissal being affirmed, there is no occasion to pass upon the order vacating the service upon the nonresident defendants.
By the Court. — The judgment of the circuit court is affirmed.