the property whether it was validly transferred by the divorce judgment originally or whether the trial court had jurisdiction to review that judgment and change it after the expiration of one year from its rendition, a question which admits of serious doubt. When the second action was commenced, ostensibly to correct the divorce judgment, plaintiff was in possession of the notes and mortgage, claiming title thereto, which was liable to be questioned by the mortgagor, Electa Clithero, and by Elias Magnuson as well. In those circumstances a court of equity had jurisdiction to quiet plaintiff's title to the property. Actions for that purpose are infrequently brought where the subject is personal property, but the jurisdiction of the court in such cases is as well defined and as well understood as where the subject is real estate. Pom. Rem. & Rem. Rights, § 369. Plaintiff's situation was such that she had no way of remedying the mischief growing out of the threatened dispute as to her title, except to appeal to equity for a decree silencing those from whom such dispute might come. Hence, upon the plainest principles of equity jurisdiction, it was in the power of the court to entertain an action quia timet in plaintiff's behalf and to make the proper decree. The complaint stated the facts requisite to a judgment setting at rest plaintiff's fears as to her title, and the prayer, though in the main for a change in the divorce judgment, was broad enough to cover a judgment quia timet. The judgment, though intended, in the main, to authorize a change in the divorce judgment, also expressly decreed that plaintiff was entitled to enforce the notes and mortgage the same in all respects as if they were executed directly to her. There is no question but that the court had jurisdiction of Elias Magnuson and of the mortgagor, proper service of process in the action having been made upon each. The result is binding upon the mortgagor as to every question regarding the property raised therein by her answer in this action independent of whether the judgment in the divorce action be void or not. The title to the notes and mortgage, both as to her and Elias Magnuson as well, was there put at rest for all time, no matter from whence plaintiff's claim of title came. The principles of law governing the situation are familiar and simple, too much so in fact to warrant any extended discussion of them. The court having jurisdiction of the subject-matter and the parties, determined the rights of all. That stands as the infallible truth. It cannot be gainsaid by the parties to the litigation in this or any other case, or this or any other court. The court in a proper proceeding between the parties has spoken by its decree. So long as that decree stands, respondent and defendant Elias Magnuson, whose rights appellant stands in fear of, are effectually estopped from setting up any claim inconsistent with it.

The Judgment appealed from is reversed

Rev. St. 1898, § 3844, providing that claims against decedents not presented to the probate court within the time appointed therefor shall be forever barred, applies to claims of nonresident creditors in the administration of domestic, as well as ancillary, administrations of foreign estates.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by James W. Winter against Josephine Winter. There was a judgment for defendant, and plaintiff appeals. Affirmed.

This is an action against the heir of a deceased person, under section 3274 et seq., Rev. St. Wis. 1898. The action was tried by the court. The facts were not in dispute, and were found by the court to be substantially as follows: Both the plaintiff and the defendant are residents of California. The defendant is the widow and heir at law of one W. G. Winter, who died, intestate, December 24, 1892, in San Francisco, leaving estate in California, and also being seised of certain real estate in Dane county, Wis. His estate in California was inventoried in May, 1893, at nearly $71,000, of which nearly $9,000 was personal property, and the balance real estate. Administration was had of his estate in the superior court of the city and county of San Francisco, which is a court of general jurisdiction, having also probate Jurisdiction; and the defendant was appointed administratrix of the estate. The plaintiff was a creditor of the estate to the amount of $9,538.75, and duly proved his claim April 5, 1893. At the time of the commencement of this action, the plaintiff was the sole remaining creditor of the estate, except the German Savings & Loan Association of San Francisco, which had a mortgage of $10,000, secured upon the real estate in California by a lien prior to the plaintiff's. The personal estate of the deceased, in California and Wisconsin and elsewhere, is not sufficient to pay the plaintiff's debt, or any part thereof; and all of the real estate of the estate, except that in Wisconsin, is only of the value of $13,296.66, upon which the claim of the savings and loan society is a prior lien to that of the plaintiff. The plaintiff has been unable, with due diligence, to collect any part of his debt in the California probate court, and will be unable to collect the same, or any part thereof, in the Dane county court, or elsewhere. Ancillary administration of the estate of W. G. Winter was had in the Dane county court, and administration was granted June 27, 1893, and an order made limiting

the time for the presentation of claims, which time expired January 1, 1894, which order was duly published and proven, in accordance with the statutes; but no claim was filed by the plaintiff in said estate, and said estate was finally closed March 6, 1896, and the administrator discharged. The aforesaid real estate, situated in Dane county, of which the said W. G. Winter died seised, descended to Josephine Winter, as his sole heir at law, and was never in the possession of or under the control of the administrator of the estate, and was not inventoried as a part of the estate in the California court. From these facts the court concluded that the plaintiff was barred from any judgment in this action, by the provisions of section 3844, Rev. St. Wis. 1898, and dismissed the plaintiff's action, from which judgment the plaintiff appeals.

A. G. Zimmerman, for appellant. Spooner, Sanborn & Spooner, for respondent.

WINSLOW, J. (after stating the facts). Both the plaintiff and the intestate debtor lived in California, and the debtor owned real estate in Wisconsin. Administration of the intestate's estate was duly had in California, and the plaintiff duly proved his claim there. Administration was also had in Wisconsin, and the plaintiff failed to prove his claim here within the time limited by statute, although notice to creditors was duly given; and the question is whether the plaintiff has become barred by section 3844, Rev. St. Wis. 1898, from bringing an action under section 3274 et seq., Id., against the heir at law, to charge her to the amount of the real estate in Wisconsin which has descended to her from the deceased. It is well settled in this state that, so far as resident creditors are concerned, claims which are not presented as required by section 3844 are forever barred; not only is the remedy cut off, but the right of action is extinguished. Carpenter v. Murphey, 57 Wis. 541, 15 N. W. 798; Austin v. Saveland's Estate, 77 Wis. 108, 45 N. W. 955. And the question now presented is whether nonresident creditors are governed by the same rule. It will be readily seen that the statute contains no exception, either express or implied, in favor of nonresidents. It says that "every person" having a claim proper to be allowed who shall not present it within the time limited shall be "forever barred." Statutes of this nature exist in most, if not all, of the states, and are generally known as "Statutes of Nonclaim"; and they are generally applied more rigorously than the general statutes of limitation. In many states there are saving clauses in favor of nonresidents, infants, and insane persons; but, in the absence of such saving clause, they run against all persons, including nonresidents as well as residents.

2 Woerner, Adm'n, § 402. This has been so held by the supreme court of the United States, in the case of Morgan v. Hamlet, 113 U. S. 449, 5 Sup. Ct. 583, which was brought by nonresidents of the state of Arkansas, against residents of that state, for the purpose of reaching assets in the hands of heirs at law of a deceased person. See, also, Erwin v. Turner, 6 Ark. 14; Rowell v. Patterson, 76 Me. 196; Richardson v. Palmer, 36 Mo. 96; Board of Public Works v. Columbia College, 17 Wall. 521; Van Steenwyck v. Washburn, 59 Wis. 483, 17 N. W. 289. A different result was reached in Hartman v. Fishbeck (U. S. Cir. Ct. E. D. Wis.) 18 Fed. 291, where it was held that the statute in question could not bar an action against the administrator in the United States courts. This last-named case, however, cannot be considered as authority so far as it is in conflict with Morgan v. Hamlet, supra; nor does it purport to decide anything save that the statute will not prevent the bringing of an action in the courts of the United States. Manifestly, the question whether it will bar an action in the state courts was not, and could not be, decided in that case. Following what seems to be the current of authority on the subject, we hold that this statute of limitations runs against nonresidents as well as residents of the state, and that it bars such an action as the one before us.

It was suggested that there might be some difference as to the questions here involved between a domiciliary administration and an ancillary administration, and that, while the statute might bar the unpresented claim of a nonresident in the first case, it would not necessarily have that effect in the latter case. We can perceive no substantial difference between the two proceedings. Section 3806, Rev. St. Wis. 1898, provides for the granting of letters of administration in two cases: First, when an inhabitant of the state shall die intestate; and, second, when a resident of another state or country shall die leaving estate to be administered in this state. But, when letters have been issued, the course of administration is the same. In both cases the provisions for the presentation of claims apply equally to both, and we are unable to see why the limitation statute is not in terms and in spirit equally applicable to property and rights involved in an ancillary administration as to property and rights involved in a domiciliary administration, at least as far as the courts of this state are concerned. The ancillary administration is an entirely independent administration. Price v. Mace, 47 Wis. 27, 1 N. W. 336. This action is, in effect, a proceeding to subject real property within this state to the payment of a debt which by the laws of this state is completely barred, and no reason is perceived why the courts of this state should not enforce the bar of the statute. Judgment affirmed.

WEBSTER et al. v. DOUGLAS COUNTY et al.

(Supreme Court of Wisconsin. Jan. 10. 1899.) COUNTIES HIGHWAY EXPENDITURES-WARRANTS -PAYEES-INNOCENT PURCHASERS-OF

FICERS INJUNCTION-LACHES.

1. An injunction will lie to restrain further work on roads and further payments of money under road contracts, as against a county and its officers and road contractors, who attempt thereby to unlawfully anticipate a road levy, and to expend for road purposes more money than the statute permits.

2. Rev. St. 1878, § 1308, providing that the county board may annually levy a county-road tax not exceeding $8,000, which shall be expended, under their direction, in improving highways, limits expenditures for road improvements to $8.000 per year, which amount must have been first raised by taxation; and hence the county board had no authority to transfer a fund to the road fund and expend it in anticipation, of the ensuing annual levy.

3. Taxpayers were not guilty of laches in suing to enjoin future road work, payment for same to be made out of an illegal fund and after the county had exhausted its annual road fund, though the action was begun after contracts for the work were made and some money paid.

4. County officers were enjoined from doing road work or expending money under a certain resolution, and from expending, after the annual levy was exhausted, any money "except on main traveled highways legally laid out and duly and legally adopted as county roads." The injunction was changed so that the exception was of duly and legally adopted roads legally designated for expenditure of money in their repair, and it was again modified so that the board was not restrained from making "necessary repairs to roads mentioned in the above exceptions." The injunction was designed to prevent the illegal anticipation of the future levy by way of expending it for road improvements. Held, that the modification was only to permit the making of necessary repairs so as to make the roads safe for travel, and not to permit the prosecution of the work under new contracts or in a different guise.

5. Illegal and irregular road work, done in disobedience of an injunction, is a contempt, and cannot be in good faith, nor can it be cured by ratification or estoppel.

6. County officers who disobeyed and evaded an injunction against doing road work, and illegally paying out money therefor, as well as contractors who received such money so paid, are liable for its repayment to the county.

7. Where county warrants for road work were issued three days and cashed one day before an injunction issued to restrain same, having been assigned for collection to county officers who were required by law to countersign them, and without a prior view and acceptance of the work by a committee, as required by Rev. St. 1878, § 1309, and where an allowance of claims for which such warrants issued was marked by haste and apparent collusion in the face of a lack of funds to meet them, such officers will be liable for the repayment of such money to the county, as having been obtained by fraud.

8. Payees of county warrants who were contractors for illegal road work, and who actively assisted county officers to pay the warrants in anticipation of an action to prevent it, are liable for the repayment of such money.

9. One who bought county warrants for road work for value and in good faith, without notice of any irregularity or fraud, and was paid the amount of the same, is not liable to repay it, on a suit by taxpayers for an injunction and to enforce repayment, who, notwithstanding the public character of the work, delayed bringing suit

until it had been partially done and the money paid.

Appeal from circuit court, Douglas county; W. F. Bailey, Judge.

Action by Andrew J. Webster and others against Douglas county and others. From a judgment for defendants, plaintiffs appealed. Affirmed as to defendant the Duluth Trust Company, and reversed as to the other defendants.

This is an action in equity commenced August 7, 1894, by the plaintiffs, as taxpayers of Douglas county, on behalf of themselves and all others similarly situated, against the county, its supervisors, treasurer, and clerk, together with certain contractors for highway work, to enjoin the alleged illegal expenditure of $8,000, which was then about to be expended in repairing highways throughout the county. A preliminary injunctional order was obtained at the time of the commencement of the action, and served with the summons and complaint; but on the 4th of August twelve warrants had been issued, signed by the chairman of the board of supervisors and the county clerk, to various parties who had done work upon the highways, aggregating $2,984.75, and on the 6th of August nine of these orders were paid by the county treasurer, aggregating $2,342.95. Thereupon an amended complaint was served early in September, alleging the issuance and payment of these last-named orders, and claiming that such payment was collusive and with intent to defeat the action, and claiming to recover all the money so paid of the defendants who had received it as well as to enjoin any further payments. On the 28th of December following, a second amended and supplemental complaint was additional served, and defendants brought in by leave of court. By this complaint it was charged that the county board had paid out $4,402.63 upon illegal highway work in addition to the $2,342.95 previously paid out, and it was sought to recover this sum of the officials who had paid it out, as well as of the parties who had received it, and to enjoin any further payments. The pleadings are long, and it is not deemed necessary to state them any more fully. The facts were mostly admitted upon the trial, and were, in substance, as follows: In the county of Douglas, outside of the city of Superior, there are four towns, to wit, Superior, Gordon, Brule, and Nebagamain, and there were, at the time of the commencement of the action, 13 members of the board of supervisors, all of whom were made defendants in this action. At the November meeting, 1893, the board of supervisors levied a county road tax of $8,000, under the provisions of section 1308, Rev. St. 1878. Prior to the 5th of June, 1894, all of this $8,000 had been spent upon the highways in the county. On the 5th of June the following resolution was passed by the board of supervisors: "Whereas, the road and bridge

were

committee of Douglas county find that the roads and bridges throughout the county are in need of repairs: Therefore, be it resolved that the county board be requested to levy a tax of eight thousand dollars ($8,000.00) at the annual meeting in November next, for road and bridge purposes, said levy to be equally divided between the towns of Brule, Gordon, Superior, and Nebagamain; and that the chairman of the various towns are authorized and instructed to expend two thousand dollars ($2,000.00) in their various towns under and by direction and recommendation of the road and bridge committee of said county of Douglas." Work immediately commenced under this resolution consisting of filling, grading, and ditching various roads in the several towns of the county, but no road commissioners were appointed to superintend❘ the work, nor any bonds required from contractors, as required by section 1309, Rev. St. 1878. On the 3d of August, 1894, the county board of supervisors adopted the following resolution: "Whereas, it is evident that the money levied for normal-school purposes will not be required until November: Resolved, that eight thousand dollars ($8,000.00) of that amount be transferred to the road and bridge fund, and, when the road and bridge levy is made at the annual meeting, the same shall be credited by the county clerk to the normal-school fund, the same to be expended on county roads." On the same day they allowed the following bills for work which had been done under the resolution of June 5th, viz.: A claim for $1,007.25 in favor of the defendant McLaggan for road work in the town of Gordon; also a claim in favor of the defendant Agen for $41.80 for road work done in said town of Gordon; also a claim in favor of the defendant Cassidy for road work done in the town of Nebagamain for $1,008; also a claim in favor of the defendant Cloney for road work done in the town of Nebagamain amounting to $927.70. On the following day twelve county orders were issued for the bills so allowed, and delivered to the defendants in whose favor they were allowed, and on the 6th day of August, being the day before the injunctional order was served, nine of said twelve orders were presented and paid. Four of said orders, amounting to $1,008, and covering the claim of Cassidy, were paid to the defendant McClure, who was a supervisor from the town of Nebagamain, and to whom Cassidy had indorsed the orders. The McLaggan orders, amounting to $1,007.25, were paid to the defendant the Duluth Trust Company, to whom McLaggan had indorsed them; and the order for $327.70, being one of the Cloney orders, was paid to the defendant O. K. Anderson, the county clerk, to whom it had been transferred. On the 7th of August, 1894, the preliminary injunctional order was served with the summons and complaint, which enjoined the board of supervisors from proceeding to expend money or doing work under the reso

lution of June 5, 1894, and from expending any money or doing any road or bridge work until after a road tax, not exceeding $8,000, should be thereafter levied at the annual meeting, and from expending anything after such levy "except on main traveled highways legally laid out and duly and legally adopted as county roads," and from allowing any bills for road or bridge work until after such levy, and then only for work performed after the levy, and from signing or issuing any county orders for such bills; also enjoining the county treasurer from paying any orders previously issued, including the orders issued on the 4th of August in favor of McLaggan, Agen, Cassidy, and Cloney. On the 3d of September following, this temporary injunctional order was modified by the circuit court by striking out the words, "except upon main traveled highways legally laid out and duly and legally adopted as county roads," and inserting in place thereof the following words, viz. "except main traveled highways or parts of said highways duly and legally adopted as such, or such highways or parts thereof duly and legally designated for the expenditure of county money in their repair, pursuant to section 1308 of the Revised Statutes, and except in the exercise of the powers conferred upon counties pursuant to section 1311 of the Revised Statutes," and by adding thereto the following provision: "Ordered, further, that said injunctional be, and the same is hereby, modified so far as the same enjoins the county board from proceeding in the manner provided by law to make necessary repairs upon roads mentioned in the above exceptions, such repairs to be paid for out of the next levy regularly made for such purposes; but the issuing of county orders therefor in advance of such levy, or the taking of funds heretofore raised by taxation for any other special purpose, to pay for any such repairs, are hereby, during the pendency of said action and until the further order of the court, strictly enjoined." Notwithstanding this order, work proceeded upon the highways of the county under the resolution of June 5th, which work was principally grading and ditching; but at the annual meeting of the board of supervisors in November, 1894, the county board duly levied $8,000 as a county road tax, under section 1308, Rev. St. 1878. At an adjourned meeting of said board of supervisors, held on the 22d of September, 1894, at which seven supervisors only were present, the remaining bills for the work done under the resolution of the 5th of June were allowed, and county orders directed to be issued therefor, and were almost immediately issued, to the various persons who had performed such work, or to whom the claims for such work had been assigned, all of whom are made defendants in this action. The greater part of these orders were paid by the county treasurer on the same day. At that time there was no money in the road and bridge fund of the county, and could not