O'Neill v. Jessen

Wisconsin Supreme Court

O'Neill v. Jessen

36 N.W.2d 684, 254 Wis. 518, 1949 Wisc. LEXIS 265

DecidedMarch 10, 1949

StatusPublished

This text of 36 N.W.2d 684 (O'Neill v. Jessen) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Neill v. Jessen, 36 N.W.2d 684, 254 Wis. 518, 1949 Wisc. LEXIS 265 (Wis. 1949).

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Opinion

This action was begun by the plaintiff William von Oppen, against Arthur H. Jessen and Alma E. Jessen in October, 1946, as a creditor and legatee of the estate of Matilda Jessen, to recover certain property for the benefit of the estate. During the pendency of the appeal in this court and after the case had been submitted the plaintiff died, and the action was revived in the name of William I. O'Neill, administrator of the estate of William von Oppen, deceased. The action was begun before the executor named in the will and codicil of the decedent had qualified, and before the will and codicil had been admitted to probate. The complaint demanded an accounting, a reinstatement of a $6,500 real-estate mortgage, and cancellation of the release and satisfaction of said mortgage. The defendant demurred to the complaint and the trial court sustained the demurrer upon the ground that the circuit court had no jurisdiction, that the proceedings should have been begun in the proper county court. From an order sustaining the demurrer the plaintiff appeals. This case is ruled by the case ofPietraszwicz v. Pietraszwicz (1921), 173 Wis. 523,181 N.W. 722. This is clearly a case where application should have been first made to the county court for the appointment of a special administrator.

By the Court. — The order appealed from is affirmed. *Page 520

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This action was begun by the plaintiff William von Oppen, against Arthur H. Jessen and Alma E. Jessen in October, 1946, as a creditor and legatee of the estate of Matilda Jessen, to recover certain property for the benefit of the estate. During the pendency of the appeal in this court and after the case had been submitted the plaintiff died, and the action was revived in the name of William I. O'Neill, administrator of the estate of William von Oppen, deceased. The action was begun before the executor named in the will and codicil of the decedent had qualified, and before the will and codicil had been admitted to probate. The complaint demanded an accounting, a reinstatement of a $6,500 real-estate mortgage, and cancellation of the release and satisfaction of said mortgage. The defendant demurred to the complaint and the trial court sustained the demurrer upon the ground that the circuit court had no jurisdiction, that the proceedings should have been begun in the proper county court. From an order sustaining the demurrer the plaintiff appeals. This case is ruled by the case ofPietraszwicz v. Pietraszwicz (1921), 173 Wis. 523,181 N.W. 722. This is clearly a case where application should have been first made to the county court for the appointment of a special administrator.

By the Court. — The order appealed from is affirmed. *Page 520

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Bluebook (online)

36 N.W.2d 684, 254 Wis. 518, 1949 Wisc. LEXIS 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneill-v-jessen-wis-1949.

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