Meyer v. Barth

Whatever may be the rule in other jurisdictions, this court has definitely adopted the rule that sureties upon a probate bond are, in the absence of fraud or collusion, concluded by the decree of the proper court, rendered upon an accounting by their principal, as to the amount of the principal’s liability; and this is the rule even though the sureties be not parties to the accounting. Shepard v. Pebbles, 38 Wis. 373; Holden v. Curry, 85 Wis. 504; Schoenleber v. Burkhardt, 94 Wis. 575. The same rule prevails in many courts. Heard v. Lodge, 20 Pick. 53; Stovall v. Banks, 10 Wall. 583; Irwin v. Backus, 25 Cal. 214; Smith v. Smithson, 48 Ark. 261; Martin v. Tally, 72 Ala. 23; Housh v. People, 66 Ill. 178. It is not alleged in the present case that there ivas any fraud or collusion in Koetting’s accounting before the county court. Therefore, when, upon that accounting, the county court adjudged that on the 3d day of March, 1896, there was due from Koetting to the estate of Lurinda Shepardson $59,557.81, the question as to the amount of Koetting’s liability as trustee was conclusively settled, both as to Koetting and as to the sureties upon his bond. We do not need, therefore, to examine or discuss a number of questions which are discussed by counsel relating to the amount of Koetting’s default. Those questions were closed by the *356decree rendered upon the accounting, and cannot be opened in this action. This was the conclusion reached by the superior court, and it thereupon rendered judgment for the plaintiff for the amount of the deficiency found by the county court, with interest from the date of that judgment, and. this was manifestly right.

A point was made that the action should have been prosecuted by the county judge, under N. S. sec. 4014, subd. 4, and sec. 4015. We do not regard the point as of merit. The funds must, when recovered, go into the hands of Meyer, to hold as trustee; and he is, in his representative capacity, the real party in interest. Conceding the point to have been technically well taken, no objection was made by answer or demurrer, the point being raised by objection on the trial for the first time. It is, in effect, an objection that the trustee has not legal capacity to sue; and this must be taken by demurrer or answer, or it is waived. It is, in principle, much like the case of Webber v. Ward, 94 Wis. 605.

By the Court.— Judgment affirmed.