Roberts v. Weadock

Maeshall, J. The questions presented on this appeal are familiar and simple. Sec. 3853, R. S. 1878, provides that, ■“ after the time limited for creditors to present their claims has expired, and the amount of the indebtedness of the deceased has been ascertained by the court or commissioners, such court shall make an order or judgment for the payment of the debts of the deceased, in whole or in part, out of the assets in the hands of the executor or administrator for that purpose, as the circumstances of the estate shall require.” Sec. 3856, R. S. 1878, provides that whenever an order or judgment shall have been made as provided in sec. 3853, “ the executor or administrator, after the time fixed for the payment shall arrive, shall be personally liable to the creditors for their debts or the dividend thereon, as for his own debt; and he shall be liable on his bond, and the same may be put in action on the application of a creditor whose debt or dividend shall not be paid ” as provided in the order or judgment. Sec. 4014 provides that an action may be brought on the bond of the executor or administrator by permission of the county court, by any creditor, when the amount due him has been ascertained and ordered paid by the court, if the executor, administrator, or trustee shall neglect to pay the same when demanded. There can be no question but that the complaint states a good cause of action under the sections of the statutes referred to. The order for the payment of the claim is set forth at length in the complaint, and recites as facts found in favor of the claimants, on the application for such order — Eirst, that the time limited by the court for creditors to present their claims against the estate had expired; second, [404] that the amount of the indebtedness of the estate had been ascertained; third, that there were sufficient assets in the hands of the executor for the payment of all the indebtedness of the estate 'in full, after paying all the expenses of administration. On such facts, it devolved on the county court, by the mandatory language of sec. 3853, to render judgment in favor of the plaintiff for the payment of his claim, as was done. There is no requirement for the giving of notice of the application for the order or judgment, any more than for the application for leave to sue under, sec. 4014, and while it was proper to give such notice, it was not requisite to the jurisdiction of the court. Elwell v. Prescott, 38 Wis. 274; Landon v. Comet, 62 Mich. 80. The entry of the order or judgment referred to, and expiration of the time limited therein for payment of the claim, by the express language of sec. 3856, R. S. 1878, made the claim, to all intents and purposes, the personal debt of the administrator for which he was liable, and his bondsmen were liable as well. Upon its being made to appear that the executor refused to pay the claim upon demand therefor, pursuant to the order or judgment, the court properly, and without notice, authorized the bringing of this action under sec. 4014, R. S. 1878. Considerable evidence was taken on the trial in regard to the subject of demand for payment, and one of the points most confidently suggested in support.of the judgment is that no such demand was shown; but inasmuch as such demand was distinctly alleged in the complaint and not denied by answer, it stands, for all the purposes of the case, as a fact admitted; therefore, if the court granted a nonsuit for want of a demand for the payment of the claim, it was error. Moreover, it is considered that the order for leave to bring the suit, until set aside or vacated on appeal or some proper proceedings, is conclusive on that question. The only other question which appears to have been con [405] tested.by the defendant was whether there were sufficient assets in his hands with which to pay the claim. That was one of the very questions upon which the county court was required to form an opinion and pronounce judgment, on the application for such payment; hence, such judgment is conclusive for the purposes of this case. The general, rule is that when a court has jurisdiction to render a judgment, every proposition assumed or decided, leading up to the final result, the order or judgment, is included within it, and till reversed on appeal or set aside in some direct proceeding for that purpose it'is conclusive for the purposes of that case or proceeding upon all parties thereto, in that and all courts. Wells, Res Ad judicata, § 217; Giffert v. West, 37 Wis. 115; Quackenbush v. W. & M. R. Co. 71 Wis. 472; Cramer v. Stone, 38 Wis. 259; Pray v. Hegeman, 98 N. Y. 351; Iowa Co. v. M. P. R. Co. 24 Wis. 93; Danaher v. Prentiss, 22 Wis. 311. This familiar rule applies to all courts to the extent of their jurisdiction. Probate courts are as much within the rule as any other. Barker v. Barker, 14 Wis. 131, and Cody v. Cody, post, p. 445. The bondsmen of the executor are concluded by the judgment of the county court, the same as the principal. One of the provisions or conditions of the bond is that the executor shall perform all orders and judgments of the county court. By that condition the bondsmen were, through their principal, essentially parties to all proceedings in the court, and bound to the same extent as such principal. The question of the conclusiveness of a decree of the county court, against the principal, upon his bondsmen, is not new in this court. It was expressly decided in Holden v. Curry, 85 Wis. 504, and Sohoenleber v. Burkhardt, 94 Wis. 575. Erom the foregoing it follows that the answer of the defendants admitted every allegation of the complaint essential to plaintiff’s right to recover, and that so long as the order of the county court for the payment of the claim in [406] question remains undisturbed on appeal or some direct proceeding for that purpose, or is not shown to be void for want of jurisdiction of the court to enter it, the executor is personally liable for its payment, and his bondsmen are liable therefor as well. The plaintiff was entitled, clearly, to a judgment upon the pleadings alone, and that right was in no way impaired by any evidence that was produced in the ease. If the result here reached is prejudicial to the executor, it is not the fault of the law, but neglect on his part to resort to the ampie remedies which the statutes give. He had the right to appeal from the order or decree for payment of the claim, within sixty days after it was made, under sec. 4031, R. S. 1878, and under sec. 4035, R. S. 1878, power existed in the circuit court, if justice required, to allow an appeal from the order after the expiration of the time limited therefor by sec. 4031, upon petition being filed within one year from the act complained of. So the- misfortune to the executor, of being required to pay a claim when there are no trust funds for that purpose, if such misfortune exists, is very clearly attributable to his own laches. If there is any rule laid down in Hilton v. Briggs, 54 Mich. 265, confidently relied upon by respondents, in conflict with what is here decided, it is considered that such rule is contrary to well-settled principles and numerous adjudications of this court. By the Qowrt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.