Clausen v. Gillen

171 N.W. 758, 169 Wis. 58, 1919 Wisc. LEXIS 132

• Court: Wisconsin Supreme Court
• Decided: April 2, 1919
• Status: Published

Opinion

Winslow, C. J.

The appellant’s contention is that the respondent’s claim was barred by sec. 3844, Stats., which bars every claim against a deceased person not presented to the court within the time limited for that purpose. The argument is that the time limited by the probate court was May 1, 1916, and that the counterclaim on the notes in the Chicago action was not interposed until November 16th, consequently it was barred by the statute, and no judgment thereafter rendered could constitute a claim proper to be allowed in the probate court in this state.. In support of this position reliance is placed on Fields v. Estate of Mundy, 106 Wis. 383, 82 N. W. 343.

The contention must fail for these plain reasons:

1. The claim is upon the notes, not upon the judgment. This claim was confessedly filed in the probate court within the time limited by law and hence never became barred.

2. The claim on the notes not being barred, it could properly be interposed as a counterclaim in the action in the federal court after the administrator had revived such action. Sec. 3847, Stats.. In fact, the new equity rules of the federal courts require that it should be so .presented. Rule 30, 3 Foster, Fed. Prac. (5th ed.) p. 2867.

3. The judgment rendered in that action settled the rights of the parties as to the matters litigated therein and thus became conclusive proof as to the validity of the notes and the amount due thereon.

4. The judgment was not a new or independent claim, but simply an evidentiary fact in support of the original claim on the notes which had been filed in due time, hence such decisions as Fields v. Estate of Mundy, supra, have no application.

By the Court. — Judgment affirmed.

Kerwin and Rosenberry, JJ., took no part,