Komorowski v. Jackowski

164 Wis. 254 | Wis. | 1916

Eschweilbb,, J.

Appellant has denominated this a creditor’s action. The allegations of the complaint, however, show that instead of an execution being returned unsatisfied, which is the prime essential of a creditor’s suit (Harrigan v. Gilchrist, 121 Wis. 127, 273, 99 N. W. 909), the plaintiff pursued his legal remedies by the sale of real estate and the obtaining of the sheriff’s certificate thereon, which must be considered in effect as a satisfaction of the judgment.

Viewing the complaint, however, in the light of the provisions of sec. 2649a, Stats., and as construed in Sullivan v. Ashland L., P. & St. R. Co. 156 Wis. 445, 448, 146 N. W. 506, that is, if upon the facts stated plaintiff is entitled to any measure of judicial redress, whether equitable or legal, and whether in harmony with the prayer or not, such complaint shall, upon demurrer, be considered a sufficient pleading, it sufficiently appears, if its allegations be true, that a fraud was perpetrated upon the county court in the probate proceedings of the deceased Pauline Jaekowski in having established as the last will of said deceased a forged document, and that it is to the damage of plaintiff. Having purchased the interest of defendant John C. Jackowski by the execution sale, the plaintiff stands in the shoes of John C. Jackowski sufficiently to be heard in the probate proceedings in question.

The county court, however, has properly assumed jurisdiction of the estate of said deceased and in that forum primarily should be tested all the questions that are raised by plaintiff about that estate. The court below, therefore, was right in holding that the circuit court should not assume jurisdiction over proceedings that attempted in effect to overthrow proceedings properly before the county court. Archer v. Meadows, 33 Wis. 166.

It is no longer necessary that the plaintiff should be driven to commence proceedings over again. Under sec. 2836&, part of eh. 219, Laws 1915, the court below might have promptly certified the proceedings to the court having proper jurisdiction, and such step may be now directed by this court to be taken.

By the Court. — The order appealed from is affirmed and the proceedings remanded to the circuit court with directions to certify the same to the county court of Milwaukee county for further proceedings, appellant to pay the clerk’s fees in this court.