Vaughn v. Walsh

122 Wis. 486 | Wis. | 1904

WiNsnow, J.

Tbe record shows that tbe county court .of Bayfield county, having jurisdiction of tbe settlement of tbe estate of Thomas B. Walsh, on tbe 19th day of December, 1901, made a final order or judgment settling tbe accounts of tbe defendant as administratrix, and allowing to her tbe sum of $425 for “extraordinary services and attorney’s fees to be paid to John H. Vaughn, attorney for tbe estate, . . . in addition to tbe sum” already paid him as attorney for tbe estate. This judgment was rendered in response to a petition for adjustment of her accounts, in which it was stated that tbe administratrix bad incurred liabilities for attorney’s fees, etc., and praying allowance of her disbursements and “a reasonable allowance for attorney fee,” which petition was signed by tbe defendant, and verified. Tbe record also shows that this judgment has never been reversed, modified, or appealed from, and that on tbe 5th day of May, 1903, tbe same-county court, after personal notice to tbe administratrix, upon tbe application of Mr. Vaughn, made an order requiring tbe administratrix to pay said sum of $425 to Mr. Vaughn. Tbe defense claims, however, that the judgment of tbe county court was void for lack of power, and that, even if not absolutely void, still it may in this action be attacked and defeated for fraud in its inception.

In support of tbe claim that tbe county court bad no power to make tbe judgment tbe respondent rightly says that Vaughn was not a creditor of tbe estate, but was simply a creditor of tbe administratrix personally; and cites Wiesmann v. Daniels, 114 Wis. 240, 90 N. W. 162. Erom this principle it undoubtedly follows that Vaughn could not in tbe present case have gone into tbe county court, against objections by the defendant, and proven bis claim against tbe estate or obtained an order for payment thereof. His claim was personal against her. The estate being solvent, she should have paid her attorney for his services, and presented her account to the county court, claiming the payment as a credit, and the county court would then pass upon the item and allow it to her if reasonable. But non constat from this that the judgment attacked here is void for lack of jurisdiction. The county court had complete jurisdiction of the settlement of this estate and the disposition of the proceeds. While the administratrix might, doubtless, have objected successfully to the presentation or allowance of any claim in the county court against the estate or against herself, no reason is perceived why she might not herself in her final account present, the question to the court as to how much she should pay to' her attorney out of the residuum, of the estate in her hands. By doing so she waives any question of jurisdiction of her person, and the court, having full jurisdiction of the subject matter — i. e., the disposition of the funds in the hands of its officer — may doubtless render such a judgment as was rendered here. When so rendered, such judgment must be-considered as binding and conclusive upon the administra-trix, upon whose request it was rendered, until set aside in a direct proceeding for fraud or for some other reason recognized by the law. Another court cannot investigate it and set it aside in a collateral action, as was done here. This-principle is very familiar. Cody v. Cody, 98 Wis. 445, 74 N. W. 217; Barney v. Babcock’s Estate, 115 Wis. 409, 91 N. W. 982.

The judgment, in effect, took the sum allowed out of the estate and placed it in the hands of the administratrix for the benefit of Vaughn. If assented to by him, no good reason occurs to us why he may not sue her personally for the sum as for money had and received for his benefit. The subsequent order for payment by the county court was probably unnecessary. The action being on implied contract for money bad and received for tbe plaintiff’s benefit, tbe counterclaim upon tbe promissory note, being also a cause of action arising upon contract, is properly pleadable.

By the Court. — Judgment reversed, and action remanded with directions to enter judgment for tbe plaintiff for $425,. with interest from tbe time of demand, less tbe amount shown to be due upon tbe counterclaim.