Hepp v. Huefner

Lyon, J. The assignment of errors herein and the arguments of counsel present three questions for determination. These are: (1) Should the appeal have been dismissed because it was taken before a guardian ad litem for the plaintiff was appointed? and, if not, (2) Should leave have been granted to amend the answer by striking out the fourth paragraph thereof? and (3) Does the evidence sustain the direction to the jury to find a verdict for the plaintiff? These questions will be considered in their order: 1. As to the appointment of a guardian ad litem for the plaintiff, we think the case is ruled by that of Sabine v. [151] Fisher, 37 Wis. 376, in which a female minor brought an action without the interposition of a guardian, and the court appointed a guardian for her during the trial, when it was disclosed that she was a minor. This was held not to be error. It was said in that case, on the authority of Hafern v. Davis, 10 Wis. 501, and Wheeler v. Smith, 18 Wis. 651, that, had the plaintiff procured the appointment of a guardian without leave (as the plaintiff did in this case) the judgment could not have been reversed on that ground. This plaintiff had reached the age of twent37-one years when the cause was tried. Had no guardian ever been appointed, the omission would not affect the judgment. It would be, at most, a technical irregularity which could not affect any substantial right of the defendant. No notice to the defendant of the application for the appointment of a guardian was required. It was not an adversary proceeding in the action. The defendant had no more interest in it than a party has in the selection of an .attorney by his opponent. 2. The fourth paragraph of the answer contains no admission of the delivery of the note. It only admits the signing thereof by the intestate. That he did sign it is an admitted fact in the case, but it does not follow that he delivered it to the plaintiff. Signing and delivery of an instrument constitute an execution thereof, but the mere signing does not. Fairly construed, the answer contains no admission in any portion of it of the delivery of the note,. or that any consideration was ever paid for it. Bbth delivery and consideration are consistently denied, and are issues in the case. The plaintiff, in her testimony, denied the allegations in the fourth paragraph, and there was no evidence to the contrary. Had that paragraph, or any other portion of the answer, contained an admission that the note was delivered, or that it was founded upon a good or valuable consideration, the [152] defendant should have had leave to strike out such admission whenever any testimony was given tending to show the want of delivery or consideration. The defendant answered upon information and belief. Presumably he had no definite personal knowledge of the facts alleged by him, and could answer in no other way. Besides, the estate of the intestate was insolvent, and he was making defense to the action in the interest of creditors of the estate. It would be most unjust, under such circumstances, to refuse leave to expunge from the answer an admission thus improvidently made. Such is not the spirit of our statutes relative to the amendment of pleadings. But because there is nothing in the paragraph of the answer sought to be stricken out which can prejudice the defense to the note in suit, the ruling of the court thereon is not a material error. 3. The bill of exceptions contains testimony abundantly sufficient to send at least one, and, in a certain contingency, three questions of fact to the jury. These are: (1) Did the intestate ever deliver the note in suit to the plaintiff ? If answered in the negative that defeats the plaintiff’s claim. If answered in the affirmative, then, (2) Was there any consideration for the note? and (3) Was the intestate mentally competent, when he executed the note, to bind himself thereby? These questions, of course, should go to the jury under proper instructions (if asked for) as to the law applicable to them. It is not deemed necessary to discuss or even to state the testimony on these questions. It is sufficient to say that we find in the recoi’d sufficient testimony to support a negative answer to each of the questions. Either of them so answered defeats the plaintiff’s claim. It was clearly error to direct a verdict for the plaintiff. By the Court.— Judgment reversed, and cause remanded for a new trial.