Tomlinson v. Nelson

6 N.W. 366, 49 Wis. 679, 1880 Wisc. LEXIS 101

• Court: Wisconsin Supreme Court
• Decided: June 23, 1880
• Status: Published

Opinion

Ojrtost, J.

The respondent claimed ownership of the note in suit by having selected it as part of her legal allowance of $200, in value, of the personal property belonging to the estate of Thomas Tomlinson, deceased, to which she was entitled as his widow.

1. Such selection was strictly her right under the statute, the allowance of which by the administrator was imperative, and no order of the county court was necessary. Subdivision 1, sec. 1, ch. 99, R. S. 1858; King v. Whiton et al., Ex’rs, 15 Wis., 684.

2. The set-off of $100, money borrowed by Thomas Tomlin-son in his lifetime of the appellant Nelson, set up in the answer, was properly disallowed by the circuit court.

The replication to the answer in this particular alleged the bringing of an action by Nelson against Thomas Tomlinson for the same claim before a justice of the peace, and the rendition of judgment therein in favor of the defendant, and claimed that such set-off was thereby barred. It was proved on the trial, and the circuit court found, that such proceedings were had as alleged in the replication; and also that an appeal had been taken from such judgment to the circuit court, and was still pending therein. The judgment appealed from may not have been a good defense in bar of {he set-off, but as a suit still pending for the same cause of action it was unquestionably a good defense in abatement of the set-off in this action. Matteson v. Curtis, 14 Wis., 436.

3. Claims growing out of the partnership business and dealings between Nelson and Thomas Tomlinson were not proper subjects of set-off or counterclaim in this action, as there had been no accounting or final settlement of the partnership affairs. Linderman v. Disbrow, 31 Wis., 465.

By the Court. — The judgment of the circuit court is affirmed, with costs.