58 Wis. 591 | Wis. | 1883
There is no material difference between the judgment in this case, and the judgments in Lightfoot v. Cole, 1 Wis., 36; Woodward v. Howard, 13 Wis., 557, and Hei v. Heller, 53 Wis., 415. In all of these cases it was held that a judgment in the form of that in the present case is one de bonis propriis, and not de bonis testatoris. In the latter case, sec. 2932, R. S., was construed, and it is there held that in the cases mentioned-in the statute, although the judgment should be in form against the party prosecuting or defend
There are, doubtless, other cases in this court which conflict somewhat with the cases above cited. To those referred to by Mr. Justice OetoN in Hei v. Heller, supra, may, perhaps, be added the case of Wolf v. Schaeffner, 51 Wis., 53, which is much relied on by the learned counsel for the defendant. Whatever discrepancy there may be in former adjudications on the subject, the court intended, in Hei v. Heller, to lay down the rule which should thereafter govern the construction of the statute and of judgments rendered pursuant thereto. We are not willing to disturb the rule thus definitely established. This judgment contains no direction making it chargeable upon the estate of plaintiff’s intestate. It is therefore a judgment de bonis propriis. The court can probably give such a judgment only in a case where the administrator or trustee has been guilty of mismanagement or bad faith. Sec. 2932, supra. The record before us contains no suggestion that the plaintiff had thus rendered himself -chargeable with the costs. The presumption is that he had not. True, he failed to appear when the cause was called for trial, but that, of itself, raises no inference either of mis-mánagement or bad faith. The judgment shows on its face that it rests solely upon the failure of the plaintiff to appear when the cause was called for trial. To uphold the judgment, it should have been shown affirmatively that such failure was the result of bad faith, or of such negligence as amounts to bad faith or mismanagement.
By the Court.— The judgment is reversed, and the cause remanded with directions to the circuit court to render judgment of nonsuit against the plaintiff, de bonis testatoris.