Trustees of St. Clara Female Academy vs. Delaware Ins. Co. and others. or their agent so understood the matter and undertook or agreed to write the insurance accordingly. While it is not material what language the parties used to express their mutual intent, the court will carry it into effect and reform the instrument accordingly, still it is only such common intent that the parties have arrived at or expressed that the court will effectuate by means of its extraordinary powers over contracts and written instruments, and in such cases it will act only upon the most clear and positive proof of mistake or fraud. The writing must be taken to contain the real contract until the contrary is established by the clearest and most satisfactory evidence; and a mere preponderance of evidence will not suffice. Lake v. Meacham, 13 Wis. 355, 362; McClellan v. Sanford, 26 Wis. 595, 607; Blake Opera House Co. v. Home Ins. Co. 73 Wis. 667; Hearne v. Marine Ins. Co. 20 Wall. 490; Southard v. Curley, 134 N. Y. 154; Groff v. Rohrer, 35 Md. 327; Tripp v. Hasceig, 20 Mich. 263. The evidence, for the reasons stated, fails to bring this case within the principle of the rule invoked by respondent's counsel, in support of which they have cited many cases, and which is concisely stated by Justice MILLER in Williams v. North German Ins. Co. 24 Fed. Rep. 625, that "where an instrument fails to represent what both parties had intended to have it represent, and one party had drawn up the instrument, and the other party merely accepted it, and the fault was on the party drawing up the instrument, it may be reformed." This is clearly stated by Justice HARLAN in Snell v. Insurance Co. 98 U. S. 85, where it is said that, "in the attempt to reduce the contract to writing, there has been a mutual mistake, caused chiefly by that party who now seeks to limit the insurance to an interest in the property less than that agreed to be insured. The written agreement did not effect that which the parties intended. He [the assured] trusted the insurance agents with the preparation of a written agreement which should correctly express the meaning Trustees of St. Clara Female Academy vs. Delaware Ins. Co. and others. of the contracting parties. He is not chargeable with negligence because he rested in the belief that the policy would be prepared in conformity with the contract." And it was held that, upon discovery of the mistake, he was entitled to relief. Other cases to the same effect, and also showing under what circumstances relief will be granted for mistake of law, were cited by respondent's counsel. We think the evidence wholly fails to show mistake either of fact or of law, but that it does appear that there was no contract or meeting of minds between McAlpine and the insurance. companies, or either of them, or any one acting for them, to insure his interest. The finding of the circuit court upon this branch of the case is clearly erroneous. 2. There has been no trial of the legal causes of action stated in the complaints in these actions, nor has there been any trial of the counterclaims pleaded in them by McAlpine, in form as legal causes of action against the plaintiff. If the insurance companies should succeed in defending against the policies, the trial had in these actions and these appeals will prove to have been an idle waste of time and money. The judgments rendered on the counterclaims of McAlpine against the insurance companies certainly definitely and finally determined all the matters embraced in such counterclaims. Though characterized as orders, they are essentially judgments, and conclusive adjudications of the matters embraced in them until reversed. They are final adjudications of a part of the merits involved in the cases, leaving other and very important portions not only not adjudicated but untried. The statute (sec. 2844) provides that "when, in any action, there shall arise issues triable by a jury, and other issues triable by the court, the court shall, in its discretion, direct the trial of the one or the other to be first had, according to the nature of the issues and the interests of justice, and judgment shall be given upon both the verdict and the finding of the court, when both shall be found. But Trustees of St. Clara Female Academy vs. Delaware Ins. Co. and others. no issue need be tried the disposition of which is not necessary to enable the court to render the appropriate judgment." There can be but one final judgment in the case, and that must dispose of all the issues and the rights of the parties. Sellers v. Union L. Co. 36 Wis. 398; Scott v. Reese, 38 Wis. 636; Singer v. Heller, 40 Wis. 544; Treat v. Hiles, 75 Wis. 265; Sherman v. Menominee River L. Co. 77 Wis. 23; Gage v. Allen, 84 Wis. 330. Under our practice there is no such thing as an interlocutory judgment. Sellers v. Union L. Co., supra; Singer v. Heller, supra. And as was said by COLE, J., in Sellers v. Union L. Co., supra: "The distinction is broad between an order and judgment, and they are not to be confounded in practice." It follows, therefore, that the judgments here appealed from are erroneous, in that they cannot be maintained either as orders or as interlocutory judgments, but are really judgments determining a part only of the issues and rights of the parties, rendering a further judgment necessary to a final determination of the rights of the parties in the actions. R. S. sec. 2882. In Mowry v. First Nat. Bank, 54 Wis. 38, 66 Wis. 539, there were two judgments. The first determined the rights of the parties, but provided for a reference to carry out what had been so adjudged. A part of this judgment was reversed, and then the reference proceeded under the corrected judgment; and, for the amount reported, judgment was finally given. In Murray v. Scribner, 70 Wis. 231, it was held that a mere interlocutory order for judgment is not appealable, although it denies the motion of one party for judgment, and grants that of the other. In Paetz v. Stoppleman, 75 Wis. 510, as in Mowry v. First Nat. Bank, supra, the so-called interlocutory judgment practically settled and determined all the rights of the parties, leaving certain sums under the judgment to be ascertained and adjusted by a reference. These cases afford no warrant or support to the judgments before us. The merits of the case, in whole or in Paine and others vs. Jones. part, cannot be adjudicated or determined by a mere order. This is the appropriate office of a final judgment. Correct practice, and the avoidance of unnecessary expense and delay incident to the adjudication of the rights of the parties in detached parts or portions, require us to adhere quite strictly in the future to the practice referred to by the earlier cases. As the merits in respect to the findings have been fully argued, and considerable expense has been incurred to that end, we have thought it not improper to pass on them, though we might well have stopped by reversing the judg ments on the ground last stated, as the court will feel obliged to do as a matter of practice in future cases. By the Court. The judgment of the circuit court in each of the above cases is reversed, and they are remanded for further proceedings according to law. PAINE and others, Appellants, vs. JONES, Executor, Respond ent. March 28-April 14, 1896. Guardianship: When guardian is "discharged:" Action against sureties on bond: Limitation. A guardian is discharged, within the meaning of sec. 3968, R. S. (providing that an action against the sureties on his bond must be commenced "within four years from the time when the guardian shall have been discharged"), when the guardianship terminates; and this occurs when a minor ward attains his majority, even though the trust relation in respect to the property still continues. Stinson v. Leary, 69 Wis. 269, distinguished and limited. APPEAL from an order of the circuit court for Dane county: R. G. SIEBECKER, Circuit Judge. Affirmed. This was an action brought against the sureties on a guardian's bond, for breach of the conditions thereof, in that the Paine and others vs. Jones. guardian failed to pay over the amount found due from him on the settlement of his final account. The youngest child arrived at his majority on the 29th day of June, 1885. The guardian, without fault on the part of the cestuis que trustent, did not settle his accounts, either with them or with the proper court, until October 4, 1894. This action was thereafter commenced by appellants. The complaint sets forth facts sufficient to constitute a cause of action, unless the bar of the statute (sec. 3968, R. S.) applies. A demurrer was interposed to the complaint on the ground, among others, that the action was not commenced within the time limited by law, on which ground the demurrer was sustained, and plaintiffs appealed. [After the appeal was taken the defendant, Simeon Mills, died and the executor of his will was substituted as defendant.] For the appellants there was a brief by Erdall & Swansen, and oral argument by John L. Erdall and Sam. T. Swansen. They contended, inter alia, that the trust relation existing between a guardian and ward is not determined by the ward coming of age. Taylor v. Hill, 86 Wis. 99, 106. The coming of age on the part of the ward does not relieve the guardian of his duty as trustee to manage and invest the funds of his ward, but that duty continues so long as the trust relationship continues. Taylor v. Hill, 87 Wis. 669, 671; Olsen v. Thompson, 77 id. 666; Mellish v. Mellish, 1 Simons & S. 138; Pyatt v. Pyatt, 46 N. J. Eq. 285; Morgan v. Morgan, 1 Atk. Ch. 489; Thomas v. Thomas, 2 Kay & Johns. 79; Yallop v. Holworthy, 1 Cas. in Eq. Abr. 7, par. 10. The guardianship does not terminate and the guardian is not discharged until he has settled his accounts either with the court or with the ward. Stinson v. Leary, 69 Wis. 269; Hudson v. Bishop, 32 Fed. Rep. 519; Probate Court v. Child, 51 Vt. 82; Mathew v. Brise, 14 Beav. 345; Motes v. Madden, 14 S. C. 488; Nunnery v. Day, 64 Miss. 457; Marlow v. Lacy, 68 Tex. 154. Even if the question |