184 Wis. 171 | Wis. | 1924
This case was tried before the county court without a jury. The county court made its findings of fact and they are substantially without dispute.
In substance it appears that Herman Kallenbach entered into a contract with school district No. 18 of the town of Crystal Lake, Barron county, on the 22d day of August, 1919, in which he agreed to build a schoolhouse with outbuildings for said district for the sum of $6,565, payable $1,000 on completion of the foundation; $1,500 upon completion of the brickwork; $1,500 when the building was inclosed, and $2,565 upon completion of the building. Kal-lenbach thereupon entered upon the performance of his contract, and had substantially completed the brickwork on the 31st day of October, 1919, when he died. He had been paid by the school district the sum of $1,300, and the county court found that there was then due him the sum of $1,200. The appellant excepts to this latter finding, and contends that’the evidence is conclusive that the brickwork was not yet complete.
Kallenbach furnished the school district with a bond in the sum of $5,000 to guarantee his contract with the district, which bond was signed by one W. G. Miller as surety. After Kallenbach’s death Miller entered into an oral agreement with one of the district board to complete said school building for the amount of the unpaid contract price. Miller thereupon completed the building to the satisfaction of the district and was paid the balance of such contract price.
Kallenbach, prior to his death, had purchased building material for said building from the Miller-Olcott Lumber Company, and at the time of his death was indebted to said company for said materials in the sum of $1,446.40. The lumber company furnished to Miller material and lumber to complete the building and charged the same to the Kallen-
The lumber company failed to file a claim against the estate of Kallenbach until after the period for filing claims had expired. It then caused an affidavit to be filed in the county court, sworn to by Miller, to the effect that it had a claim against the estate which had not fully accrued at the time of the expiration of the date for filing claims, and asked for an extension of time within which to file the claim as provided by statute. The court allowed the petition and thereupon the lumber company filed its claim for $1,273. The administrator of the estate objected to the claim and filed a counterclaim for $1,200, the amount that he claimed was due Kallenbach from the school district after his death, and which sum had been paid to Miller. The county court held that the petition of the lumber company for an extension of time in which to file the claim' was false and constituted a fraud upon the court, and thereupon in effect vacated the order and disallowed the claim, but the court retained jurisdiction of the proceeding on the counterclaim and rendered judgment against the lumber company for $1,200 and costs.
At the time of Kallenbach’s death and prior thereto Miller was secretary, treasurer, and general manager of the lumber company, and at the time of the filing of the claim he was its president. A great deal of confusion is brought into this case evidently by reason of Miller’s failure to distinguish clearly between his individual affairs and the affairs of the corporation of which he was an executive officer. He was the surety on Kallenbach’s bond, but in his petition for extension of time he swore that the lumber company was surety on the bond. It is quite reasonable to believe that Miller was not guilty of any criminal intent in this re
This is assigned as error by appellant. The findings of fact are justified by the evidence, and therefore the court was within its jurisdiction to set aside an order procured by fraud. Estate of Staab, 166 Wis. 587, 166 N. W. 326, and cases there cited.
The jurisdiction of the county court, provided by sec. 3838, Stats., is to receive and adjust claims of all persons against the estate of the deceased. As provided by sec. 3841, “When a creditor against whom the deceased had claims shall present a claim to the county court the executor or administrator shall exhibit the claims of the deceased in offset to the claims of the creditor, and the court shall ascertain and allow the balance against or in favor of the estate.” By sec. 4043 it is provided that “All judgments for costs or for costs and a balance found due an estate against a person presenting a claim against such estate, entered by the county court pursuant to the provisions of law, shall have the same force and effect as judgments in
By the Court. — The judgment of the county court is reversed and set aside, with costs to the appellant.