48 Wis. 599 | Wis. | 1880
This action, in the nature of a bill in equity, is brought by the executrix against the defendant as the agent of the intestate while living, who received certain moneys from him for the purpose of loaning the same, and has not fully accounted for the same, and the plaintiff is not in possession of any books, papers or memoranda by which the amount or investment thereof can be ascertained. The defendant answered, accounting in part, and alleging a settlement with the intestate. The circuit court dismissed the complaint on the objection of the defendant to the introduction of any evidence under it, on the ground that the complaint did not state a cause of action, or one within the jurisdiction of a court of equity.
The complaint appears to state a good cause of action; and
After answer, and especially after such an answer, accounting in part and pleading settlement, the jurisdiction of the court is conceded, or at least objections to it must be deemed to have been waived. Such objection must be taken specially and as preliminary, by demurrer or .answer, or it will be treated as waived. 1 Story’s Eq. Jur., § 464; Jones v. Collins, 16 Wis., 594; Tenney v. State Bank, 20 Wis., 152; Boorman v. Sunnuchs, 42 Wis., 233.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.