Wiesmann v. Donald, 125 Wis. 600

125 Wis. 600 | Wis. | 1905

Dodge, J.

The absence of any bill of exceptions informing its wbat evidence was presented to the trial court precludes us from reviewing the question of plaintiff’s sanity as a fact, and from considering the validity of the county judge’s order, earnestly argued by him. By reason of this omission the case must be considered as if his insanity had been fully-proved.

The drastic action of the trial court in dismissing plaintiff’s complaint upon a fully admitted cause of action because-of his mental incompetency, thereby, for the time at least,, relieving the defendant from payment of money which he,, by not denying, admitted he owed to the plaintiff, seems to be in complete negation of the duty owed by all courts to protect and care for the rights of the mentally incompetent. We-are given very little aid, either by the record or by the respondent’s brief, in ascertaining the reasons which led to such-action.' The respondent informs us, without citation of authority, that “the principle that an insane person cannot appear as plaintiff and prosecute a case in.his own behalf is-elementary.” Perhaps he told the circuit court the same-thing, and that court believed him. This proposition has,, however, been directly negatived by this court in Menz v. Beebe, 95 Wis. 383, 70 N. W. 468, where it was held that no obstacle exists, either by common law or under our statute, to the maintenance of an action by an incompetent person. Among the supporting authorities cited in that case was Chicago & P. R. Co. v. Munger, 78 Ill. 300, where it is-pertinently said:

“The note was due and unpaid, and somebody was entitled to sue upon it and enforce its collection. If appellee [the incompetent] was not, who was ?”

Again, in Rankin v. Warner, 2 Lea (Tenn.) 302, it is said::

“The law mainly designs to protect the weak and dependent, and if the courts, seeing a suitor has rights or property entitled to their consideration and judgment, turn him out: because no one will or does assume tbe role of guardian or next friend for bim, they will certainly be guilty of a strange perversion of tbe object of tbeir creation.”

Tbe common-law right of a lunatic to maintain a suit was declared as long ago as Lord Coke’s time, in Beverley’s Case, 2 Coke’s Rep. pt. 4, 568. And tbe distinction in tbis respect between an incompetent and an infant bas always been recognized (1 Freem. Judgm. § 152), and is fully preserved in our own statutes, which provide (sec. 2613, Stats. 1898) that an infant must appear by guardian," but omit any such requirement with reference to the insane plaintiff. Tbe rule-in Menz v. Beebe is supported not only by tbe authorities-there cited, but also by Allen v. Ramson, 44 Mo. 263; Rankin v. Warner, supra; Amos v. Taylor, 2 Brev. (S. C.) 20; Stigers v. Brent, 50 Md. 214; Looby v. Redmond, 66 Conn. 444, 34 Atl. 102; Skinner v. Tibbitts, 13 Civ. Proc. R. (N. Y.) 370.

Our statutes evince a policy to confer upon courts full power to protect tbe interests of insane persons who are in court without tbe protection of their guardians, by authorizing that in any case when a party shall appear to be insane-tbe court or judge may appoint a guardian for tbe action, as tbe case may require, and by requiring that, in case of a defendant, be shall be protected by a guardian. Sec. 2615,. Stats. 1898. Tbe proper course for courts to pursue when it becomes apparent that a plaintiff, by reason of bis insanity,, cannot safely protect his rights in tbe litigation, is illustrated by Wiesmann v. Daniels, 114 Wis. 240, 90 N. W. 162, where,, upon suggestion of such a situation, tbis court, instead of dismissing tbe case and denying all bearing to tbe -unfortunate,, appointed a guardian ad litem and directed tbe case to proceed. Eor tbe reasons above stated it is obvious that tbe circuit court erred, to the grievous prejudice of tbe plaintiff, in-dismissing this action, and that tbe judgment to that effect must be reversed. Since, however, tbe action was at issue; ■by the filing of what the defendant had denominated his answer, had been duly noticed for trial, and the plaintiff moved for judgment upon that answer, no reason is apparent for refusing him such relief. The answer contained no word of denial of any of the allegations of the complaint, and it was the duty of the court in that situation to render judgment ac•cordingly, subject to its discretionary power to allow defendant to jilead to the merits if he could show sufficient excuse ■for his neglect to do so, and upon terms such as would compensate the plaintiff for the delay and the repetition for his preparation for trial. We have determined to leave that situation still open, so that such discretion may still be exercised, although upon the record as it now stands plaintiff would be entitled to judgment for the amount demanded in his complaint.

By the Oourt. — Judgment reversed, and cause remanded for further proceedings according to law.