Scheer v. Ulrich

Cassoday, O. I. It is conceded on-the part of the appellant that the only questions for consideration are whether the facts téstified to by the witnesses support the findings, and whether the findings, if true, support the judgment. A summary of such findings and testimony is given in the foregoing statement and need not be here repeated. Counsel further concedes that it is well settled in this state that an order or judgment of the county court may be set ■aside for fraud or fraudulent concealment on the part of the prevailing party. Estate of Leavens, 65 Wis. 440, 21 N. W. 324; Thomas v. Thomas, 88 Wis. 88, 59 N. W. 504; Estate of O’Neill, 90 Wis. 480, 63 N. W. 1042; Parsons v. Balson, 129 Wis. 311, 109 N. W. 136. But it is claimed that the frauds for which such order or judgment may be set aside are those which are extrinsic or collateral to the matter tried, and not a |raud which was in issue in the former suit. In •support of such claim counsel cites U. S. v. Throckmorton, 98 U. S. 61. See, also, Hilton v. Gwyot, 159 U. S. 113, 207, [317] 16 Sup-. Ct. 139. That case Ras been cited approvingly by tbis court during tbe present term to tbe proposition that: “Fraud wbicb can be made tbe basis of an attack upon a solemn judgment of a court of record must bave directly induced tbe rendition of tbe judgment, not merely bave induced or brought about a condition upon tbe real existence of wbicb tbe court acted as tbe basis of its decree.” Uecker v. Thiedt. ante, p. 148, 113 N. W. 447. In tbe case at bar tbe claimant was seeking to charge .the estate of a person who bad been adjudged incompetent to take care of bis person or bis property. At tbe time of tbe rendition of tbe judgment of February 11, 1903, complained of, the only person -or persons outside of tbe courts legally authorized to protect said estate from false and unfounded claims were tbe general guardian and guardian ad litem previously appointed by tbe county court as mentioned. Uo objection was made .to tbe allowance of such claim, notwithstanding such general guardian and bis attorney bad long prior to said allowance been informed, that tbe claimant bad repeatedly admitted that she bad been fully paid and that tbe incompetent did not owe her anything, but tbe court found that they bad, prior to tbe rendition of said judgment, forgotten such information. In respect to such admissions counsel invokes tbe rule, often asserted by tbis court, that “evidence of casual statements or admissions by a party, made in casual conversations and' to disinterested persons, is very weak testimony, because of tbe liability of tbe witness to misunderstand or forget what was really said or intended by tbe party.” Haven v. Marhstrum Wis. 493, 30 N. W. 720. Tbe rule as to tbe weakness as evidence of admissions so made is supplemented by Mr. Greenleaf with tbis statement: “But where tbe admission is deliberately made and precisely identified, tbe evidence it affords is often of tbe most satisfactory nature.” 1 Greenl. Ev. (15th ed.) § 200. That statement was fully sanctioned by tbis court at an early [318] day. Dreher v. Fitchburg, 22 Wis. 675, 681. To the same effect, Saveland v. Green, 40 Wis. 431. The admissions of the claimant mentioned in the foregoing statement were made with apparent deliberation. We cannot say that the trial conrt was not justified in treating such admissions as evidence in the case. As often observed, that conrt saw the witnesses, and was in a much better position to determine the facts than this court. It is claimed that because Scheer, the administrator, learned of the allowance of the claim in September, 1904, he was therefore guilty of laches in not taking action to test the validity of the claim during the life of the intestate; but at the time of learning the fact the claim had been allowed and fully paid. The administrator got no interest in the estate until the death of the intestate. Until then he could not know whether he would get any interest in the estate or not. Upon the death of his grandfather he promptly took the requisite steps to set aside the judgment. We must hold that the findings are sustained by the evidence and that the judgment is sustained by the facts admitted or found. By the Oourt. — The judgment of the circuit court is affirmed.