Schwickerath v. Lohen , 48 Wis. 599 ( 1880 )

Oetost, J.

This action, in the nature of a bill in equity, is brought by the executrix against the defendant as the agent of the intestate while living, who received certain moneys from him for the purpose of loaning the same, and has not fully accounted for the same, and the plaintiff is not in possession of any books, papers or memoranda by which the amount or investment thereof can be ascertained. The defendant answered, accounting in part, and alleging a settlement with the intestate. The circuit court dismissed the complaint on the objection of the defendant to the introduction of any evidence under it, on the ground that the complaint did not state a cause of action, or one within the jurisdiction of a court of equity.

The complaint appears to state a good cause of action; and the only real-question is, whether the relief sought is within the jurisdiction of a court of equity. It is true that by the statute (section 55, ch. 137, E, S. 1858; section 4096, E. S. 1878) “no action to obtain discovery under oath, in aid of the prosecution or defense of another action, shall be allowed;” but this'does not affect the question of "the jurisdiction of a court of equity in any proper case for an accounting. "Whether the accounts between the parties are mutual or" not, where a discovery is a necessary part of the accounting, as in this case, the jurisdiction of -a court of equity is unquestion - 'able. Willard’s Eq. Jur., 91, and notes 24 and 28; 1 Story’s Eq. J"ur., § 458 and note 4, and § 463 and notes. This principle is elementary, and supported by uniform authority; and this case, as made by the complaint, is clearly within the principle.

After answer, and especially after such an answer, accounting in part and pleading settlement, the jurisdiction of the court is conceded, or at least objections to it must be deemed to have been waived. Such objection must be taken specially and as preliminary, by demurrer or .answer, or it will be treated as waived. 1 Story’s Eq. Jur., § 464; Jones v. Collins, 16 Wis., 594; Tenney v. State Bank, 20 Wis., 152; Boorman v. Sunnuchs, 42 Wis., 233.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.