Richter v. Estate of Leiby

107 Wis. 404 | Wis. | 1900

BardeeN, J.

1. The defendant strenuously attacks the judgment herein on the ground that all the orders and judgments entered in the Emerson estate matter by Lodge Richter are nullities, and were made and entered at a time when he was disqualified from acting. ITis supposed disqualification is based upon the fact that in 1887, some three years before he became county judge, he was appointed, guardian ad litem for an infant in the proceeding which culminated in the appointment of a trustee for the Emerson estate in place of one deceased. The defendant appeals to two statutes as establishing such disqualification. The first is sec. 2447, S. & B. Ann. Stats., which provides that “ When the judge of any county court . . . shall be an executor or administrator or guardian of any ward or interested as creditor or otherwise in any question to be decided, he shall be disqualified to act in relation to that estate, or the decision of such question,” etc. We are clearly of the opinion that this section was not intended to cover, and ought not to be construed to cover, a case like this. The use of the words “ executor or administrator ” in connection with the words “ guardian of any ward ” indicate that the person meant was some trustee charged with the duty of caring for property or looking after some interest then pending, for which he must account to the court, and concerning which the court must make some decision. A guardian ad litem, is not such person. lie is an attorney appointed to conduct or care for a particular matter in court. He neither has charge of the person nor of the property of the infant, and is accountable to the court only as an attorney is always accountable for the faithful discharge of his duties. Moreover, a reading of the whole section shows that it was not the legislative intention that such disqualification should be perpetual. The last clause provides that, when the disability no longer exists, the circuit judge who has been called upon to act shall transmit the papers to the county court, “ and such county court shall thereafter perform all the remaining duties relative thereto.” This shows a plain legislative intent to extend the disqualification to act only so long as the judge continues to be executor, administrator, or guardian. Judge Richter's duties as guardian ad'litem ended as soon as the appointment of a trustee was made, if satisfactory to the interests he represented. The order of appointment expressly limited his appointment to that particular proceeding. The matter is made more significant by the fact that in another proceeding in the same matter the following month a new guardian ad litem was appointed therein. In Morgan v. Hammett, 23 Wis. 30, and again in Appeal of Schæffner, 41 Wis. 260, this court held that a county judge was not disqualified from acting merely because he had been counsel for one of the parties interested in the estate.

The other statute relied on is sec.' 2579, which is as follows: “In case any judge of tlie circuit court, or of a county court having civil jurisdiction, shall be' interested in any action or proceeding in such court, or shall have acted as attorney or counsel for either of the parties thereto, such judge shall not have power to hear and determine such action or proceeding, or make any orders therein, except with the consent of the parties thereto.” The county court of Fond du Lac county has civil jurisdiction, and hence it is argued that Judge Richter had no authority to make any order in the Emerson matter because he had been interested therein. This argument has no weight when we come to consider the exact situation. By sec. 2447, the legislature fixed the limitations of the authority of the county judge while acting as a judge of probate. Being legislation upon a definite subject, it must be presumed to have covered all the limitations considered necessary on that subject, A. proper construction of sec. 2579 confines the limitations therein proscribed to the county judge while acting in matters over which he has been given civil jurisdiction. It certainly could not have been the legislative intent to prescribe one standard for a county judge who had no civil jurisdiction, and another for a judge who had that power, while exercising the same jurisdiction.

2. A further argument is made that no devastavit was established, and no demand and refusal to pay was shown. The evidence .on this point is precisely the same as on the former trial. Every argument made here could have been made on the former hearing, and, if well founded, would bave resulted in the affirmance of the former judgment. The defendants had full opportunity to urge these objections on the former appeal. Having failed to rely upon the error, if error it is, they must be regarded as having waived their right to do so on a subsequent appeal. Dilworth v. Curts, 139 Ill. 508-517.

Independent of these considerations, however, we do not think the objection urged is well taken. The evidence shows that the defaulting trustee was properly cited to account; that he filed an account showing, under oath, that he had embezzled the entire estate, and that he was indebted to the estate in a large amount; that the amount he should pay over had been determined, and an order for its payment entered; that such order had been duly served on him, and that he had neglected to comply therewith. This was conclusive upon the sureties, and was sufficient to authorize suit upon the bond. Holden v. Curry, 85 Wis. 512; Schoenleber v. Burkhardt, 94 Wis. 575.

We have carefully considered the other objections raised, and are convinced that they are not of sufficient importance to require extended consideration. Certainly, none ■of them is grave enough to warrant a reversal of the judgment.

By the Court.— The judgment of the circuit court is affirmed.