Opinion
September 13, 1939 —
January 16, 1940.
APPEALS from separate orders and judgments of the county court of Waupaca county: A. M. SCHELLER, Judge. Affirmed.
For the appellants there was a brief by Browne Browne of Waupaca and Harsh, Harsh Harsh of Memphis, Tennessee, and oral argument by E. E. Browne.
For the respondent there was a brief by Miller, Mack Fairchild of Milwaukee and Brazeau Graves of Wisconsin Rapids, and oral argument by J. Gilbert Hardgrove of Milwaukee, and R. B. Graves.
R. G. Davis, Maude Eutsler, Susa B. Dick, and Marjorie Dick Atkins each filed his claim against the estate of William H. Hatten of which the First Wisconsin Trust Company is administrator. From orders denying continuances and judgment in each case dismissing the claim, separate appeals are brought. While the facts on which the claims are based vary, the considerations controlling the ruling are practically identical and the cases are presented together on appeal. The orders and judgments appealed from are: (1) Orders entered on November 3, 1938, denying motions for a continuance. (2) Orders entered on November 21st disallowing claims and ordering judgment against the respective claimants. (3) Order entered December 15th denying motions for a new trial. (4) Judgments in favor of the defendant dismissing the several claims dated December 19, 1938.
The claimants alleged that the relation of Hatten to the Tallahatchie Lumber Company is as described in the complaint of W. H. Dick against the Trust Company, administrator, decided herewith. R. G. Davis alleges that the Lumber Company delivered to the claimant a note for $1,000, dated October 4, 1926, payable on demand; that $350 was paid on the note November 19, 1926; that there was a balance due at the time of filing the claim of $1,081.59, which includes interest. A second cause of action set up that Davis performed work, labor, and services for Hatten at a salary of $1,800 a year and advanced money from time to time aggregating $9,814.71. The administrator denied the allegations of the complaint and pleaded the statute of limitations.
The claim of Maude Eutsler verified August 19, 1937, was based on notes. She filed a formal complaint verified October 26, 1937, in which she alleged the transaction of business by Hatten under the name and style of the Tallahatchie Lumber Company and that he gave a note dated at Memphis, Tennessee, November 11, 1933, for $1,600, payable to the order of W. H. Dick, administrator of the estate M. B. Eutsler, the signature being "Tallahatchie Lumber Co., by W. H. Dick;" that the note was assigned to and is now owned by her; that it was indorsed by Hatten on November 11, 1933; that there was due on it the= sum of $1,317.16. There was a second cause of action in which she alleged that she was the owner of a note which had been given by one J. P. Hey and B. M. Hey to W. H. Dick, administrator of the Eutsler estate, for $3,054.82; that the note was indorsed January 23, 1934, by the Tallahatchie Lumber Company; that the company had made payments thereon January 23, 1935, November 7, 1935, totaling $1,558.37, leaving due on the note $1,986.47, which includes interest. The answer of the administrator put all of the allegations of the complaint in issue.
The claim of Susa B. Dick was based on a note for $2,040.82, dated January 2, 1932, signed "Tallahatchie Lumber Co., by W. H. Dick," and in her complaint verified October 23, 1937, she included additional claims, in one of which she alleged that during the operation of the Lumber Company she and W. H. Dick had given a note secured by a mortgage on a plantation known as Silver City for $12,000; that because of the foreclosure of that mortgage a deficiency judgment had been entered against her for $12,100; and that prior to June 6, 1932, at the request of the Tallahatchie Lumber Company, she and Marjorie Dick Atkins had taken title to the Dickson plantation; that thereafter at Hatten's request they had conveyed the lands to the Tallahatchie Lumber Company; that Hatten assumed the indebtedness, but that in the transaction she was liable to the Federal Land Bank of New Orleans for $11,000; and in another cause of action she alleged that on October 18, 1933, with W. H. Dick she signed a note for $17,000 to the Union Central Life Insurance Company of Cincinnati, Ohio, at the request and for the accommodation of Hatten, which note was indorsed by Hatten; that the mortgage was foreclosed and deficiency established against her for $6,112.14, September 27, 1937. All allegations were put in issue by the answer of the administrator.
Upon the cause being reached for trial motions for continuance were made and denied. At the time the motions for continuance were made the court had just been considering a similar motion in the matter of the claim of W. H. Dick against the same estate. The statement of facts in that case, Estate of Hatten ( Dick v. First Wisconsin Trust Co.), ante, p. 256, 289 N.W. 630, supplemented by the following statement, sufficiently presents the facts upon which the court based its ruling.
The claimants Susa B. Dick, Marjorie D. Atkins, and W. H. Dick are closely related. The claimant R. G. Davis and Maude Eutsler are apparently on intimate terms with the other claimants. All appeared by the same counsel. The court set the Dick claim for trial October 26, 1938. The attorneys in the case moved for a continuance October 24th. There was presented an affidavit signed by Dick and Harsh, dated October 15, 1938, which describes Dick as claimant in his own case and as the important witness in the matters of the claims of Maude Eutsler, Susa B. Dick, Marjorie Dick Atkins, and R. G. Davis. Upon that hearing the trial judge expressed himself as being of the opinion that from all facts and circumstances disclosed to him the cases ought to go to trial. He continued it from October 26th to October 31st, at which time affidavits were filed and motions for continuances were made. From the orders denying the motions for continuance and from judgments dismissing the claims, these appeals are taken.
The question, the answer to which must determine the rights of the claimants on these appeals, is whether or not the court erred in denying the motions for continuance. As appears from the foregoing statement, the controlling facts on these appeals are substantially the same as those which controlled the ruling in the case of Estate of Hatten ( Dick v. First Wisconsin Trust Co.), ante, p. 256, 289 N.W. 630, the appeal in which is decided herewith. In passing upon the motions for continuance in these cases it was impossible on the point of good faith to disassociate them from the procedure followed in the motion made at the same time in the case of Dick against the Trust Company. As a practical matter, when the history of the relations of all the parties to each other and to the Tallahatchie Lumber Company are given their full weight, it is impossible to conclude that these claimants were not fully advised of the intent of Mr. Dick to be absent at the time of trial. It appears from the affidavits and depositions that the litigation each claimant must revolve about and be influenced by Mr. Dick. On this point of good faith it is proper to consider that neither of the claimants appeared at the trial and that representations that they did not know Dick would be absent could not be accepted as seriously advanced.
We apprehend that this state of affairs was influential in forming the opinion of the court below. There was no sufficient affidavit of merits and nothing was done to show a disposition on the part of the plaintiffs to assist in establishing the merits of the controversy. As said, none of the claimants appeared at the trial; none offered any proof; nor was any attempt made to use the deposition containing the examination of Mr. Dick. Had they been unaware of Dick's intentions not to be present, the offering of themselves as witnesses and submitting to cross-examination might have assisted the court; and if it had then appeared that the testimony of Dick was necessary, an application for an adjournment for the purpose of further examination of Dick might have followed. The representations relied upon for continuance presented a case too superficial to be passed without complete investigation. Here, as in the case of Estate of Hatten ( Dick v. First Wisconsin Trust Co.), supra, we cannot say that there was an abuse of discretion by the trial court in ruling as it did.
By the Court. — Orders and judgments affirmed.
FOWLER and NELSON, JJ., dissent.