Schoenleber v. Burkhardt

94 Wis. 575 | Wis. | 1896

Ma.Rshall, J.

There are several points raised by appellant, which will be considered in their order.

1. That the order sustaining the first demurrer did not grant leave to amend; hence it was final. It was competent for the parties to do by agreement what the court might have authorized in regard to the service of an amended complaint. Obviously, the failure to insert in the order leave to plead over was an oversight, for the order awarded .$10 costs. That was erroneous, except as terms of serving .an amended complaint. Curtis v. Moore, 15 Wis. 134. The parties so construed the order. An amended complaint was served, and the $10 costs paid as terms thereof. Such complaint was retained by appellant and acted upon as regular, without objection. That effectually cured the omission from the order of leave to amend.

2. That the amended complaint is the same as the original, except that the heirs of the deceased bondsmen are not joined as defendants; hence the decision on the first demurrer is res adjudícala of all points raised by the second demurrer. The practice is well settled that the decision of this court, on appeal from an order overruling or sustaining a demurrer, is res adjudieata of questions thereby raised in ■all subsequent proceedings in the case in this court, and in the lower court as well. Noonan v. Orton, 27 Wis. 300; Fire Department of Oshkosh v. Tuttle, 50 Wis. 552; Ellis v. N. P. R. Co. 80 Wis. 459. But it is just as well settled that the decision of the lower court in such a case is not res ■adjudieata of the same questions on a second demurrer. Hackett v. Carter, 38 Wis. 394; Watson v. Appleton, 62 Wis. 269.

3. That the second amended complaint is defective because it does not show that the bond was approved by the county judge. Sec. 3966, R. S., provides that, “ before appointing any person guardian of a minor, the court shall require such person to give a bond to the minor, in such sum and with such sureties as the court shall • designate and approve.” The complaint alleges the appointment of the guardian, and, as qualification is a condition precedent to the appointment, we hold that the allegation of the appointment sufficiently shows performance of such condition.

4. That the action was prematurely brought, because the complaint does not, by appropriate allegations, show that the liability of the sureties has been established. It is alleged in the complaint that the final account of the guardian has been settled, the amount that he should pay over determined, an order entered for its payment, and neglect or refusal of the guardian to comply with such order. That is .conclusive on the sureties, and sufficient to authorize suit upon the bond, as held, in effect, in Holden v. Curry, 85 Wis. 512.

By the Court. — The order of the superior court is affirmed.