Opinion
October 5, 1953 —
November 3, 1953.
APPEAL from an order of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant there were briefs and oral argument by Noreen Gough Bengston and Warren K. Bengston, both of Madison.
For the respondent there was a brief and oral argument by George A. Solsrud of Madison.
The above-entitled action was started on April 11, 1952. The material allegations in the complaint are as follows:
"2. That on the 18th day of May, 1950, the said defendant, M. Lena Hessman, recovered a judgment against the decedent Amanda C. O'Brien in the circuit court of Dane county for the sum of $2,254.50 damages and $152.49 court costs and disbursements, said judgment having been affirmed on appeal to the supreme court of the state of Wisconsin and said judgment having been fully satisfied by payment by Leslie O'Brien, bondsman for Amanda C. O'Brien.
"3. That on information and belief said judgment was secured by means of false and fraudulent representations knowingly placed before said court; that the plaintiffs have at all times objected to the judgment and at this time have new evidence to show that the note on which the judgment was secured was altered and mutilated prior to being introduced into the court as evidence.
"4. That by the practice of said fraud and deceit upon the decedent, Amanda C. O'Brien, the defendant herein has impaired her health by causing her undue worry and anxiety, wrongfully causing her death; that prior to her death Amanda C. O'Brien's social and commercial relations were damaged and she was put to great embarrassment and humiliation by reason of the above-mentioned suit.
"6. That by reason of said fraud and deceit practiced as aforesaid the plaintiff has lost his wife by death and with it her companionship and association.
"7. That by reason of said fraud and deceit practiced as aforesaid the said decedent and her estate have been put to great expense and loss of time in the defense of said action and the loss of moneys paid to said M. Lena Hessman under order of the court."
The other allegations of the complaint describe the parties and have reference to damages. A demurrer was interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action, that several causes of action had been improperly united, and that the action was not commenced within the time limited by law. The demurrer was sustained and the plaintiff's appealed therefrom.
The demurrer was properly sustained. The allegations of fraud in the complaint are conclusions of law and raise no issue. The complaint did not state facts sufficient to constitute a cause of action.
Essentially this was an action to recover damages for the wrongful death of Amanda O'Brien. The note in the prior action was executed on December 5, 1941. The alteration of the note, if any occurred, took place more than two years before the commencement of this action. Accordingly, in so far as this action is based upon wrongful death, it is barred by the provisions of sec. 330.19 (5), Stats.
By the Court. — Order affirmed.