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Steckbauer v. Leykom, 130 Wis. 438.

relied to his damage in making the purchase. Its operation is in the nature of a constructive fraud. We are not clear whether the trial court regarded the evidence in this light or whether the stipulation of the parties was held to be an agreement that there was a partial failure of consideration, and that an allowance of damages, on the basis of the items stipulated, was to be made defendants by way of reduction of plaintiff's claim. However that may be, we are of the opinion that, under the evidence and facts stipulated, the court was justified in proceeding upon either theory. Whichever one was followed would lead to the same result, namely, that defendants were entitled to a reduction of plaintiff's claim on account of the loss they sustained by reason of the errors in the inventory.

The court allowed defendants one eighth of the damages against plaintiff. This must have been upon the ground that plaintiff was liable to this extent because defendants acquired a one-eighth interest in the business and property of the firm. We perceive no error in applying this rule to the amount of liabilities they paid in addition to those specified in the inventory, but we do not find that this would be the correct measure of damage for the $1,050 deficiency in resources. Defendants purchased into the firm on the basis of $16,000 net assets, while the inventory showed an amount somewhat over $18,500. Under these circumstances the amount allowed should be not to exceed one eighth of thirty-two thirty-sevenths of the whole as the proportional loss due to such $1.050, to be borne by plaintiff, because of the diminution of resources. This would be substantially the sum of $113.20, which is to be deducted instead of the full one eighth allowed by the court. This with $196.72, which is one eighth of the excess of liabilities, make the total which should have been allowed. This matter was not specifically brought to the attention of the lower court. Had it been, the court would undoubtedly have made the allowance in this amount. We will therefore

Pleshek v. McDonell, 130 Wis. 445.

modify the judgment in this respect and affirm it in all other respects.

By the Court. The judgment is modified by deducting the sum of $18.05 from the sum allowed as damages to the defendants, so that plaintiff shall have judgment for $763.67, and as so modified the judgment is affirmed; neither party to recover costs on this appeal, but respondent to pay the clerk's fees in this court.

PLESHEK, Respondent, vs. McDoNELL and another, Appellants.

December 8, 1906-January 8, 1907.

Judgments: Inequitable enforcement: Relief against execution: Independent action: Injunction.

1. The right to prevent the inequitable enforcement of a judgment (by levy of an execution on the debtor's homestead and proceeding to sale thereunder) must be enforced by motion in the action in which the execution was issued. A separate action for such purpose cannot be maintained.

2. This rule applies where a circuit court is invoked to enjoin the enforcement of a judgment by an independent action in the same court. Jackson M. Co. v. Scott, ante, p. 267, followed.

APPEAL from a judgment of the circuit court for Shawano county: JOHN GOODLAND, Circuit Judge. Reversed.

This action was brought to restrain the sale of lands levied upon under an execution. An execution was issued upon a judgment obtained by defendant Barth against plaintiff. Plaintiff claimed and set up in his complaint that the property levied upon was his homestead and of less value than $5,000. The action was brought against defendant Barth and McDonell, sheriff, who levied under the execution. The complaint sets up facts showing that the real estate levied upon

Pleshek v. McDonell, 130 Wis. 445.

was plaintiff's homestead, does not exceed the amount in value of $5,000, and that defendant Barth caused an execution to be issued and a levy made thereunder by defendant McDonell, sheriff of Shawano county, and notice of sale to be published; that judgment was not upon cause of action arising out of liability and debts upon liens, mortgages, or taxes, and that defendants threaten to sell the real estate so levied upon; and prays for an injunction restraining sale, and for general relief. The answer admits that plaintiff is owner of the premises levied upon, the issuance of execution, and levy and notice of sale, and denies other allegations of the complaint. The case was tried by the court and findings made in favor of plaintiff, and judgment ordered according to the prayer of the complaint. Judgment was entered accordingly, from which this appeal was taken.

For the appellants the cause was submitted on the brief of Gerrit T. Thorn and Eberlein & Eberlein, and for the respondent on that of A. L. Schmitz.

KERWIN, J. From the view we take of this case it will be unnecessary to consider the questions discussed by counsel. The action was improper under the decisions of this court. The plaintiff, if he had a right to prevent the enforcement of the execution against his property, should have proceeded by motion in the action in which the execution was issued to prevent the abusive use of the process of the court, and a separate action for such purpose cannot be maintained, since one circuit court cannot restrain the enforcement of a judgment in another circuit court; and this rule applies where one circuit court is invoked to restrain the enforcement of a judg ment by an independent action in the same court. Endter v. Lennon, 46 Wis. 299, 50 N. W. 194; Orient Ins. Co. v. Sloan, 70 Wis. 611, 36 N. W. 388; Stein v. Benedict, 83 Wis. 603, 53 N. W. 891; Jackson M. Co. v. Scott, ante, p. 267, 110 N. W. 184. In the latter case this question has been fully

Bovee v. Johnson, 130 Wis. 447.

considered, and further discussion of it is unnecessary. This action is ruled by the foregoing cases in this court.

By the Court. The judgment of the court below is reversed, and the cause remanded with instructions to dismiss. the action.

BOVEE, Appellant, vs. JOHNSON, Executor, Respondent.

December 8, 1906-January 8, 1907.

Wills: Probate: Appeal to circuit court: Procedure: Estoppel: Trial de novo: Appearance by attorney: Jurisdiction.

1. On appeal to the circuit court by an heir and legatee from an order of the county court admitting a will to probate, it is error for the circuit court to rule that appellant, who was present in the county court at the time the will was admitted to probate and made no objection thereto, is estopped from contesting such probate in the circuit court by reason of his consent given in the county court.

2. Under sec. 2294, Stats. 1898 (providing that no will shall be effectual to pass either real or personal estate unless it shall have been duly approved and allowed in the county court as provided in the statutes, or on appeal in the circuit court or in the supreme court), sec. 4031 (providing that in all cases not otherwise provided for, any person aggrieved by any order, judgment, decree, or determination of the county court may appeal therefrom to the circuit court), and sec. 4034 (providing that, when the cause is thus transferred from the county court to the circuit court by appeal, it may be brought to trial in the same manner as actions originally brought therein, and the court shall proceed to the trial and the determination of the matter according to the rules of law, allowing a trial by jury of all questions of fact, in cases where such trial may be proper; and such court may direct an issue to be made up between the parties in a brief form, when it shall be deemed necessary, and appeals may be taken to the supreme court as in other cases), an heir named as legatee in a will, who was present in the county court on its probate and made no objection, may appeal from the determination admitting such will to probate and file objections to such probate, and is thereupon entitled to a trial de novo in the circuit court.

Bovee v. Johnson, 130 Wis. 447.

3. On an appeal from a judgment of the circuit court admitting, on appeal from a judgment of the county court, a will to probate, claims were made in the supreme court, for the first time, that the appeal papers from the county court were insufficient to give the circuit court jurisdiction. These claims were based

appear that appellant was

on two grounds: (a) that it did not
in any wise interested in the estate; (b) that the notice of ap-
peal was not signed by appellant nor by any person by his di-
rection. Held:

(1) Recitation in the petition for the probate of the will that appellant was one of testator's next of kin and heirs at law, and in the will, by which he was named as a legatee, that he was a son of deceased, and a statement in the notice of appeal that appellant was aggrieved by the order of the county court, showed that appellant was interested in the estate.

(2) Appellant having given and signed the undertaking on such appeal as principal, and the same having been approved by the county court, the notice of appeal signed B., "attorney for appellant," sufficiently established that the notice of appeal was given by his direction.

(3) The circuit court had jurisdiction by virtue of the appeal.

APPEAL from a judgment of the circuit court for Outagamie county: JOHN GOODLAND, Circuit Judge. Reversed.

It appears from the record and is undisputed that June 21, 1904, Frederick Bovee executed his will wherein he nominated and appointed the proponent, George A. Johnson, executor thereof, and in which he bequeathed to his son, the contestant, Irving Bovee, $10. July 19, 1904, the said Frederick Bovee died, leaving said instrument. On August 23, 1904, said will was admitted to probate by the county court of Calumet county. Within the time required by the statutes the son, Irving Bovee, by his attorneys, Barber Bros., served notice of appeal to the circuit court for Calumet county, and filed the same with the requisite undertaking with the county court, and the same was duly approved by that court October 21, 1904. On November 5, 1904, the county judge of that county duly certified the papers and the proceedings in the case to the circuit court for that county. On February 21,

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