White's Estate, In re

• Decision Date: 07 March 1950
• Citation: 256 Wis. 467,41 N.W.2d 776
• Parties: In re WHITE'S ESTATE. WHITE et al. v. AUSTIN et al.
• Court: Wisconsin Supreme Court

Page 776

41 N.W.2d 776

256 Wis. 467

In re WHITE'S ESTATE.

WHITE et al. v. AUSTIN et al.

Supreme Court of Wisconsin.

March 7, 1950.

Wm. M. Johnston, Springville, Iowa, Masters, Hansen & Krembs, Sparta, for appellants.

Donovan, Gleiss, Goodman, Breitenfield & Gleiss, Sparta, for respondents.

BROWN, Justice.

The first problems have to do with our jurisdiction and with the rights of parties to be heard. The respondent administrator de bonis non questions the jurisdiction of this court to hear the appeal and the appellants say that such administrator is not an interested party and has no right to question or assert anything.

Jurisdiction is always of concern to us and if it is suspect it does not matter who calls a supposed defect to our attention. We will examine the record in such detail as may be necessary for us to come to a conclusion. The administrator points out that unless an extension of time to appeal is allowed by the county court under sec. 324.05, Stats., which did not occur here, sec. 324.04(1), Stats., limits the time within which an appeal may be taken from an order or judgment of a county court to sixty days from its entry and sec. 274.11, Stats., directs that service of notice of the appeal be made within such time on each adverse party who has appeared in the proceeding. He says respondent White is such a party and was not served until September 14, 1949, four days after the sixty days had elapsed: ergo, the appeal was not perfected within the time limited and must be dismissed.

Sec. 269.51(1), Stats., provides that a respondent waives all objections to the regularity and sufficiency of an appeal or to the jurisdiction of the court if he participates in any proceedings in the appellate court before moving to dismiss the appeal. The record shows that respondent, White, by his attorneys, Donovan, Gleiss, Goodman, Breitenfield and Gleiss, admitted service of appellants' brief and appendix on December 7, 1949, and on the same day respondent Austin, by the same attorneys, admitted like service. No motion was made to dismiss the appeal until December 22, 1949 when respondent administrator so moved. The record does not show that the briefs were ever returned or that the service was repudiated or that White has done anything herein after counsel admitted service of the brief as his attorney. Such acceptance and retention of briefs was held to be a participation in proceedings in the appellate court in Maas v. W. R. Arthur & Co., 1942, 239 Wis. 581, 2 N.W.2d 238. There the respondent also took part in settling the bill of exceptions, but that is a proceeding in the trial court. Kitchenmaster v. Mutual Automobile Ins. Co., 1945, 248 Wis. 335, 338, 21 N.W.2d 727, and as such has no influence on the question. The participation in the appellate court before moving to dismiss was the same in the Maas case as it is at present and we follow the rule that we applied then, that objection to jurisdiction was waived and thereby sec. 269.51(1), Stats., conferred upon the supreme court jurisdiction of the appeal. See, also, In re Estate, 1945, 247 Wis. 376, 19 N.W.2d 849.

Having held that appellants are properly before us, we reach their contention that the administrator, who is the only respondent to file a brief or make oral argument, is not a party who can oppose their appeal. They refer us to In re Estate of Bailey, 1931, 205 Wis. 648, 238 N.W. 845, which questions, though it does not decide, the right of an administrator who is not aggrieved by a judgment to appeal from it. It is still unnecessary to decide whether sec. 324.01(2), Stats., gives such an administrator the right of appeal because the administrator here is not appealing. We would not have summarily reversed the learned county court if no one had appeared in support of its judgment but would have felt bound to examine the record and apply the law as well as we could. It is, of course, unusual that respondent White, whose interests require the judgment to be affirmed, has not supported it, while respondent Austin who, as administrator, is theoretically indifferent to the result, presses upon us the arguments we would have expected to hear from White. Nevertheless, for our own satisfaction if no more, our decision must be tested against the points he has made and we have carefully considered what he has to say. We have often done as much for amici curice.

Appellants submit that in 1949 the county court cannot alter or set aside or replace the final judgment it entered in 1929. We have concluded that this is true since only error and no lack of jurisdiction, fraud or imposition on the court is charged against it. We so held in Re Will of Brandstedter, 1929, 198 Wis. 457, 224 N.W. 735, whose facts were much the same as they are in the present matter. Brandstedter's will provided a life...