Byington v. Harper
Byington v. Harper
Opinion of the Court
The plaintiff sues on two separately stated causes of action to recover damages from the defendant, who, as she alleges in her complaint, served first as a special, and then as general, guardian for her from September 18, 1924, to July 14, 1931, by virtue of appointments made by the county court of Dane county. So far as here material, plaintiff alleges, as her first cause of action, that, while she was mentally incompetent, and the defendant was her special and general guardian, he conducted her business, as such guardian, loosely, carelessly, and negligently, without due and proper regard to her rights and interest, and with the result that a large deficit existed; that in 1928, without her consent and over her protest, the defendant carelessly, negligently, and in violation of his duty to her as her general guardian, and to the prejudice of her rights and interest, sold her farm for $3,500, which, in addition to being, as he knew, $2,200 less than she had paid therefor shortly prior to September, 1924, was at least $2,300 less than its fair market value; and that by reason thereof she had sustained loss in that amount, which was attributable to defendant’s negligence.
As her second cause of action, plaintiff, after repeating the allegations as to the defendant’s appointment and his
In connection with her allegations, as to each cause of action, plaintiff also alleged that the defendant “was duly discharged as general guardian of this plaintiff by the county court of Dane county, Wisconsin, on or about the 14th day of July, 1931, and his account as such guardian, as well as his earlier account as special guardian, were duly settled by the said county court prior to the commencement of this action.” Defendant contends that, because it appears affirmatively from those allegations that the county court, on July 14, 1931, ordered that the defendant’s accounts as guardian of the plaintiff “were duly settled” and that he “was duly discharged as general guardian” of the plaintiff, and there is no allegation as to any mistake, fraud, or other circumstances that would render that order null and void, it must be deemed conclusive and a bar to the claims on which plaintiff sues in this action. That contention is based on the established propositions that, in the absence of allegations of such facts as would warrant an adjudication that that order was null and void, it was res adjudicata and conclusive as to all matters which were within the county court’s jurisdiction, and which were involved, as a matter of law, in
Thus, in Lehman v. Weiner, 167 Wis. 428, 167 N. W. 806, it was held that claims for loss because of conversion by an executor should have been asserted and litigated in the county court, and could not be litigated in another action in the circuit court. On the other hand, in Estate of Dunlap, 184 Wis. 345, 199 N. W. 387, it was held that an administrator’s account could be surcharged in the county court for the full amount of the proceeds of inventoried property as to which he had reported only half of the proceeds because he considered another party entitled to the remainder. The resulting issue was held to be one which clearly 'arose in the settlement of the estate, and which was necessarily for the determination of the county court.
By the Court. — Order affirmed.
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