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172 Wis. 388

Klukas v. Linderman

Wisconsin Supreme Court

Decided October 19, 1920

Wisconsin Supreme Court · decided 1920-10-19

This plaintiff filed a claim in the county court of Dunn county against the estate of J. D. Simons, deceased, for the sum of $500, less interest payment of $25, which plaintiff claims he loaned to deceased on September 2, 1915. This claim as filed states that it was evidenced as follows: Colfax, Wis., Sept. 2, 1915. In the State of Wisconsin, in the County of Dunn. I herewith agree to pay Mr. Robert Klukas five hundred dollars with interest at five per cent, until it is paid.

Cited by 1 later decisions — most recently January 1977

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1920-10-19

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S'iebecker, C. J.

¶1The original claim filed in county court by plaintiff states that the alleged loan was evidenced by the writing above mentioned. The circuit court permitted claimant to amend the claim'by alleging the facts of the loan in the form of a separate count without i-eference to this writing. We discover no erfor in so amending the claim. This, however, did not operate to so amend the claim as to effect a withdrawal of the claim filed and thus completely substitute another claim for the one originally filed in county court. If plaintiff failed to establish that the writing as alleged was given by decedent as evidencing the loan, he would not be barred from recovering on his claim the amount of a loan if it was legally established by other evidence than the writing. Hence the amendment of the claim in circuit court accomplished no more than to permit claimant to recover the alleged debt, if satisfactorily proven aside from the alleged written memorandum. All of the evidence received by the court was material and competent evidence upon the issue raised by the pleadings, and must be considered in determining whether or not the findings of the circuit court assailed on this appeal are sustained. An examination of the evidence adduced shows that the circuit court was amply justified in concluding that the writing presented by claimant as evidencing the loan did not bear the signature of decedent and that the evidence of the witnesses testifying to the negotiation between claimant and decedent resulting in the alleged loan and the giving of the alleged writing, in connection with the other evidence before the court, lacked in probative force to establish the making of the loan as claimant asserts. The trial court saw *391and heard these witnesses while on the stand and could best judge of the weight of their testimony. It is considered that the findings of the court cannot be held to be against the clear preponderance of the evidence, and they must stand.

¶2By the Court. — The judgment appealed from is affirmed.

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