13 Wis. 557 | Wis. | 1861
By the Court,
On the argument, it was intimated to counsel that, as we understood the judgment in this case, it was a personal one, while clearly it should have been one de bonis testatoris. The language of'the judgment is, that the respondent “ recover of Jacob M. Howard, the defendant, the aforesaid sum,” &c. The action was against the appellant as executor, &c. There is nothing in the case to show that he had, for a violation of any duty, become personally liable to pay the judgment. Undeniably, the intention was to take a judgment to be paid out of the assets in his hands to be administered. I cannot see that it is possible to distinguish it from the case of Lightfoot vs. Cole, 1 Wis., 26. It was suggested on the argument that there was something in the pleadings and issues in that case which rendered the decision inapplicable here. But I fail to see any essential difference in the two cases. • In each case the judgment is de bonis propriis,
It was likewise suggested by the counsel for the respondent, that as this was a mere matter of form, we should either send the case back, with directions to the circuit court to put tbe judgment in proper form, or amend it here so as to obviate the objection now taken to it, and make it correspond to the liability of the appellant as executor, instead of sending it back for a new trial upon the merits. We. think it would be competent for this court thus to correct the error in the judgment, and were we satisfied that the merits of the case were with the respondents, we should adopt that course. See Fitzhugh vs. Wiman, 5 Selden, 559. But upon the record we are not satisfied that the respondent should .«recover against the estate of Mrs. Cutler. It is not necessary to go into that matter now, and we throw out this intimation of our views upon the merits as a reason why we think there should be a new trial.
The judgment of the circuit court is therefore reversed, and a new trial ordered.
