
    Huebschmann and others, imp., Plaintiffs in error, vs. Cotzhausen, Defendant in error.
    
      April 27
    
    
      May 15, 1900.
    
    
      Ejectment: Res adjudicata: Betterments: Parties: Writ of error: Variance from record: Immaterial error.
    
    1. On the final settlement of an estate in 1885, defendants being parties; to the proceeding and the court having jurisdiction of the subject matter and the persons, the county court found and adjudged that, plaintiff’s grantor was the legitimate child and heir of a deceaseds devisee under testator’s will, and entitled to an interest in the real: estate in question. In 181)5, on application of defendants to set aside' so much of the judgment of the county court as adjudged plaintiff’s grantor entitled to a share in such real estate, the county court: found that no fraud had been practiced, and reaffirmed its judgment. ■ On appeal to the circuit and supreme courts, respectively;, the judgment of the county court was in all things affirmed. Iru ejectment by plaintiff to recover his share of the estate, it was held’. that the judgment of the county court was res adjudicata as to the-questions of the legitimacy and heirship of plaintiff’s grantor.
    3. Where, in ejectment, it appears from the undisputed evidence that, the amount of rents and profits received by the defendants during-the term of their adverse possession exceeds the amount paid by them for repairs, improvements, and taxes, it is not error to refuse a. request to have the jury assess the value of the improvements made and taxes paid by them.
    8. In an action of ejectment a tenant of the adverse claimants who retains possession of the premises is a necessary defendant under sec. 3075, Stats. 1898, and should be joined in a writ of error to review a judgment against him and the other defendants; but a failure in that regard is not a defect going to the jurisdiction, but an irregularity which may, in the discretion of the court, be cured by amendment.
    4 A motion to dismiss or quash a writ of error because of such a defect will not be granted unless made soon after the case reaches-the supreme court.
    Eeroe to review a judgment of the superior court of Milwaukee county; J. C. Ludwig, Judge.
    
      Affirmed.
    
    For the plaintiffs in error there was a brief by Thos. 
      
      Gill, attorney for G. G. Huebschmann, and J. G. Kerwin and ■Adolph Huebschmann, attorneys for the Huebschmann heirs, and oral argument by Mr. Huebschmann and Mr. Gill.
    
    Eor the defendant in error there was a brief signed by F. W. v. Gotzhausen, defendant in error, and Sylvester, Scheiber db Orth, of counsel, and oral argument by Mr. Gotzhausen.
    
   Oassoday, O. J.

On April 5, 1866, John Hess, of Milwaukee, duly executed his last will and testament, wherein and whereby he purported to give to his wife, Regina, all his personal property absolutely, and also the use of his real estate for the term of twenty-five years after his death, subject to the payment by her of all taxes and assessments thereon during such term; and the remainder of such real estate he devised, the undivided one-half to the children of his daughter, the plaintiff Crescentia C. Huebschmann, and the other undivided one-half to the children of his son, Philip Hess, then living in Louisiana, and named his widow, Regina, as executrix of his will. John Hess never had any other children. On October 26, 1866, the son, Philip, died in New Orleans, leaving, him surviving, a widow, who died during the. following year, and also a little boy, John Hess, who died a few months after'his father, Philip, and also a daughter, Susannah, who was born December 1, 1862, and who was consequently nearly four years of age when her father, Philip, died. On April 30, 1810, the testator, John Hess, died at his home, in Milwaukee, leaving, him surviving, his widow, Regina, also his daughter, the plaintiff in error, Grescentia G., and her four children, plaintiffs in error in this action, and his granddaughter Susannah Hess, daughter of his deceased son, Philip. On November 14, 1810, such will of John Hess was admitted to probate in the county court of Milwaukee county, and the widow, Regina, was appointed such administratrix. On May 13, 1811, the widow, Regina, intermarried , with one Ferdinand Thoma, and thereupon ceased to be such administratrix, and August 21, 1871, Francis Huebschmann was appointed such administrator, with the will annexed. On June 11, 1881, the granddaughter Susannah intermarried with one John La Place of New Orleans. December 3, 1883, and after the granddaughter Susannah had become twenty-one years of age; she sold her share and interest in such real estate, and she and her husband conveyed the same, by a duly executed deed of conveyance, to one Frederick Roth, of Milwaukee.

May 6, 1884, the granddaughter Susannah and Frederick Roth filed their petition in the county court, reciting the facts stated, and praying for the final adjustment and settlement of all matters and things pertaining to the estate of John Hess, deceased, and for the construction of such will, and the determination of the rights and interests of the parties interested, and that the residue of the estate be assigned to the persons entitled to the same. Thereupon, and on May 7, 1884, the county court made an order in the matter of such will that such application be heard at the time and place therein named, and that notice of such application and hearing be given to all persons interested, by the publication of a copy of such order for three successive weeks, once in each week, prior to such hearing, in the newspaper therein named. Due proof of such publication was filed in the county court in such matter May 31, 1884. Thereupon Emil Wallber, then an attorney at law in Milwaukee, appeared for two minor children of the daughter {Francis and Anna), plaintiffs in error herein, and by their guardian, Gustave Reuss, put in an answer for them to such petition, and, among other things, therein alleged, in effect, that the estate of John. Hess, deceased, had not been fully administered; that no account had been rendered either by the executrix or by the administrator de bonis non; that no vouchers had ever been presented of the payment of the debts and funeral charges of the deceased; that Susannah La Place was not a child and heir at law of Philip Hess, the son of John Hess, deceased; that neither Susannah nor Frederick Eoth was interested in the estate of John Hess, ■deceased;, that neither Susannah nor Frederick Eoth was entitled to any part of the estate of John Hess, deceased.

Ón June 14, 1884, the daughter, Crescentia C., one of the plaintiffs in error herein, and the widow, Eegina, were cited by the county court to appear at a time and place named, then and there to answer such questions as might be put to them relative to the matters then in issue in such estate. Thereupon commissions were issued and testimony taken in New Orleans in respect to the paternity and legitimacy of the granddaughter Susannah, and after full hearing of all parties in the county court, and on January 3, 1885, the county court made its final order, judgment, and decree, reciting therein, in effect, that it being satisfactorily made to appear that due notice of such hearing had been given as required by law and the former order of the court; that the facts stated in the petition of Susannah and Eoth were true, ■.and that all the debts and expenses of last sickness, funeral charges, and expenses of administration up to that time had been paid; that no personal property remained in the hands of the former executrix and administrator de bonis non for •distribution, and that there was no necessity for any further ■■administration or continuance of the estate in court; that ■the testator died seised in fee simple of the lands described; that the only children of the daughter, Crescentia C., were the plaintiffs in error herein, Adoljph, Amalia, Francis, and Arma, the two last named being minors, who had appeared therein by Gustave Reuss, their general guardian, Hon. Emil Wallber, an attorney of that court, acting as counsel; that Susannah La Place, of New Orleans, was the sole child and heir at law of Phillip Hess, the son of the testator, and that all her right, title, and interest in and to the real estate of which the testator died seised had, by deed of conveyance dated December 3, 1883, for a valuable consideration, been transferred and set over to Frederick Roth of Milwaukee, — ■ by virtue of the power in such court vested, and pursuant to the statute, and ternas of such last will and testament, it was thereby ordered, adjudged, and decreed that the real estate described be, and the same was thereby, assigned and transferred as follows: One undivided half to the above-named Adolph, Amalia, Francis, and Anna, share and share alike, and the other undivided one-half to the above-named Frederick Roth, the assignee of Susannah La Place; the whole -of the estate, however, being subject to a term of years usufruct, created by the terms of the will in favor of the testator’s widow, Regina Hess, then the wife of one Ferdinand Thoma, of Milwaukee, which term extends for a period of twenty-five years from April 30, 1870, on certain conditions in such will enumerated and specified, and subject, further, to the right of the widow to sell, let, rent, or dispose of the buildings on such premises as she might see fit and proper. Such order, judgment, and decree contained certain other matters, not necessary here to state.

On April 29,1895, the plaintiff in error Orescentia 0. filed her petition in the county court in such matter, praying that so much of the order, judgment, and decree so entered January 3, 1885, as adjudged that Frederick Roth, as the assignee of Susannah La Place, was entitled to one undivided half interest in and to the real estate described, be declared null and void, and that Frederick Roth and the defendant in error herein, Frederick W. v. Cotzhausen, be cited to appear before such court and show cause why such order and decree should not be adjudged null and void, and why an order should not be entered assigning to her, as the heir at law of John Hess, the undivided one-half so assigned to Frederick . Roth; and thereupon Frederick Roth and Frederick W. v. Cotzhausen were cited to appear and answTer such petition at a time and place therein named, and they so appeared, respectively, and went to trial.

Upon such hearing, and the records, evidence, and proofs adduced, at such hearing, the county court found and adjudged that neither Frederick W. v. Cotzhausen nor Frederick Roth had imposed upon the court in any way or manner in obtaining the final decree and order of January 3, 1885', and that neither of them was guilty of any of the frauds or evil practices charged and insinuated against them in and by such petition; that Susannah La Place was, in effect, the sole child and heir of Philip Hess, and the only one entitled to claim as such under such will; that Crescentia C., the petitioner, was a party to the proceeding culminating in such decree, and that the court had full jurisdiction of the subject matter and of all the parties therein interested, and that such order and decree ought not to be disturbed; that the citation issued be discharged, and the petition of Crescentia C. be dismissed.

On June 27, 1895, the plaintiff in error, Crescentia C., appealed from such judgment to the circuit court. Upon the trial and hearing of such appeal in the circuit court it was found by that court “ that the county court had full jurisdiction of parties and subject matter when entering its decree of January 3, 1885; that the evidence and proofs submitted utterly failed to support the material allegations of the appellant’s petition,” and, as conclusions of law thereupon, the court held that the order appealed from ought to be affirmed, and that judgment be entered accordingly, with costs to be taxed in favor of the respondents.” Judgment was thereupon entered accordingly. Crescentia C. appealed from that judgment to this court, and the judgment was affirmed October 22, 1897. Will of Hess: Huebschmann v. Cotzhausen, 97 Wis. 244.

The term of the widow, Regina, fully expired April 30, 1895. On December 17, 1897; the defendant in error, Frederick W. v. Cotzhausen, commenced this action of ejectment against Crescentia C. and her four children named, and one Herman Valet and one Lydia Webber, to recover the undi-vicled one-fourth of the real, estate described,— being the premises so conveyed to him by Frederick Roth, and one half of the premises so conveyed to Roth by the granddaughter Susannah. The complaint therein alleged, in effect, the facts stated, and that the defendants Valet and Webber, respectively, were in the actual possession of parts of the premises as tenants of Crescentia C. and her four children, and were therefore joined as defendants therein. Such possession by Yalet and Webber was expressly admitted in the answer of Crescentia C. herein, and also in the separate answer of her four children named.

At the close of the trial the jury returned a verdict to the effect: (1) That Susannah La Place was the legitimate child of Philip Hess. (2) That the fair rental value of the premises in question, entirely free and clear of all buildings, during the period from May 1, 1895, to the date of such verdict, would have been nothing. (3) That the jury found for the plaintiff, that he was the owner of an estate in fee simple and had a right to recover the possession of an undivided one-quarter of the premises therein described; that the defendants had unlawfully withheld the possession thereof from the plaintiff ever since May 1, 1895, and were in the joint possession thereof; and that they assessed the plaintiff’s damages for the unlawful withholding thereof at the sum of six cents. Thereupon, and on June 19, 1899, judgment was entered on such verdict in favor of the plaintiff therein, Frederick W. v. Cotzhausen, and against Crescentia C. and her four children, Adolph, Amalia, Francis, and Anna, and also against the defendant therein, Herman Valet. To reverse that judgment the defendants therein, Crescentia C. and her four children, Adolph, Amalia, Francis, and Anna, sued out this writ of error.

The principal controversy in the trial court was as to whether Susannah La Place was the legitimate child of Philip Hess, deceased. Other questions involved were made to turn upon the determination of that question. Numerous errors are assigned in regard to the admission of testimony, the form of the verdict, and the instructions to the jury. The view we have taken of the case makes it unnecessary to consider any of those questions. After careful consideration, we have reached the conclusion that the defendant in error was entitled to the verdict rendered, upon the undisputed record evidence. By the judgment and decree of the county court, entered January 3, 1885, it was, after full hearing or opportunity for hearing, determined that Susannah La Place was the legitimate child of Philip Hess,-and, subject to the balance of the term of the widow, and her right to sell, let, rent, or dispose of the buildings on the premises as she might see fit and proper, the one undivided half of the remainder of such real estate was thereby assigned and transferred to the four children of Crescentia G. Huebschmann, share and share alike, and the other undivided one-half was thereby assigned and transferred to Frederick Roth, as the assignee of Susannah La Place. Such, adjudication'was made upon the application of Susannah La Place and Roth, as her assignee, for an assignment of the residue of the estate as provided by statute (sec. 3940, Stats. 1898). Such issue was expressly raised by the answer óf the two minor children of Crescentia C., by their general guardian, as above Stated. The statute expressly required such general guardian to “ appear for and represent his ward in all actions and proceedings, except where another person is appointed for that purpose.” Sec. 3982, R. S. 1878 and Stats. 1898. Webber v. Ward, 94 Wis. 605. No other person was so appointed. Notice of such hearing was given to the several adults interested, by publication, as required by the statute (sec. 3931, R. S. 1878), and also to the widow, Regina, and the daughter, Crescentia C., by the county court citing them, respectively, to appear before that court, at a time and place therein named, to answer such questions as might be put to them relative to the matters thus in issue in such estate. The judgment and decree thus rendered in the county court more than fifteen years ago appears to have been regular in all respects, and by a court having complete jurisdiction of the subject matter of the proceedings, and of the several persons interested. Such being the circumstances under which that judgment and decree was rendered, it would seem to be binding upon all parties interested. Sec. 3940, Stats. 1898; Ford v. Smith, 60 Wis. 225; Hall v. Hall, 98 Wis. 199.

But there is still another reason why such judgment and decree is binding upon Crescentia C., who is the only one of the plaintiffs in error interested in the question of the legitimacy and heirship of Susannah La Place. Ten years after the rendition of that judgment and decree, the plaintiff in error Crescentia C. filed her petition in the county court in such matter to set aside and have declared null and void so much of such judgment and decree as adjudged that Eoth, as such assignee, was entitled to the undivided one-half of such residue of such estate. Thereupon Eoth and the defendant in error were cited to appear and answer such petition, which they did, as stated. Upon the trial of that issue the county court found, in effect, as indicated, that the court had not been imposed upon in the making of such final judg. ment and decree; that neither Eoth nor the defendant in error had been guilty of any frauds or evil practices in the matter; that Susannah Was the sole child and heir at law of Philip Hess, and entitled to the real estate so assigned to her, and that the court had full jurisdiction of the subject matter and of all the parties interested; and that the judgment and decree should not be disturbed. The plaintiff in error Crescentia C. then appealed from the judgment entered thereon to the circuit court, where such issues were retried; and at the close of such trial the judgment of the county court was in all things affirmed by the circuit court, and «pon her appeal from the judgment of the circuit court the same was affirmed in all things by this court. Will of Hess: Huebschmann v. Cotzhausen, 97 Wis. 244. We must regard the judgment and decree of the county court as res adjudicata. Noonan v. Orton, 4 Wis. 335; S. C. 27 Wis. 300; Lathrop v. Knapp, 27 Wis. 214; S. C. 37 Wis. 312; Fire Department v. Tuttle, 50 Wis. 552; Ellis v. N. P. R. Co. 80 Wis. 459; Case v. Hoffman, 100 Wis. 336-339, 351, 360.

We perceive no error in refusing the request of the plaintiffs in error to have the jury assess the value of the improvements made and taxes paid by them. It appears from the undisputed evidence that the amount of rents and profits received by them during the term of their adverse possession exceeded the amount paid by them for repairs, improvements, and taxes, and that the net balance in their hands ■after making all such payments was $694.75.

The defendant in error has suggested a question of practice which we do not feel at liberty to pass over in silence. Mrs. Webber, who was made a defendant in this action of ■ejectment, abandoned the premises pendente lite, and so the notion as to her was discontinued. But the defendant Valet, in ejectment, who, as indicated in the statement, is conceded to be in the actual possession of a portion of the premises as tenant of Crescentia C. and her four children, remained .such defendant, and the judgment is against him and the other -defendants. Yalet was a necessary defendant in the action of ejectment. Secs. 3075, 3076, Stats. 1898. But he did not join in suing out this writ of error. It was held by our territorial court that “ a writ of error must be brought in the names of.all the parties against whom the judgment was .given, and, if the writ does not agree with the record in this respect, it may be quashed.” Doty v. Strong, 1 Pin. 165. To the same effect, Fotterall v. Floyd, 6 Serg. & E. 315; Hampton v. Rouse, 13 Wall. 187; Pearson v. Yewdall, 95 U. S. 294; Feibelman v. Packard, 108 U. S. 14. But the defect is a mere irregularity, which may, in the discretion of the court, be amended. It does not go to the jurisdiction. Had the motion to quash, as indicated in the first case cited, or to dismiss, as indicated in some of the other-cases cited, been made soon after the case reached this court,, it would probably have been granted. But, as it was not so made, we have felt called upon to dispose of the case on the merits.

By the Ooxvrt.— The judgment of the superior court of' Milwaukee county is affirmed.

Babdeeh-, J., took no part.  