Baumgarten's Estate, In re

• Decision Date: 10 January 1961
• Parties: In re ESTATE of Harold A. BAUMGARTEN, Deceased. FARMERS AND MERCHANTS BANK, Reedsburg, Wis., Appellant, v. REEDSBURG BANK et al., Respondents.
• Court: Wisconsin Supreme Court

Page 169

107 N.W.2d 169

12 Wis.2d 212

In re ESTATE of Harold A. BAUMGARTEN, Deceased.

FARMERS AND MERCHANTS BANK, Reedsburg, Wis., Appellant, v. REEDSBURG BANK et al., Respondents.

Supreme Court of Wisconsin.

Jan. 10, 1961.

E. H. Radtke, Reedsburg, William H. Spohn, Madison, of counsel, for appellant.

Kjorstad & Stevens, Reedsburg, W. L. Jackman, Madison, Victor A. Miller, St. Nazianz, Paul M. Newcomb, Reedsburg, for respondent.

CURRIE, Justice.

While other issues are raised in appellant's brief we deem the controlling issues to be:

(1) Did the memorandum decision of May 4, 1960, constitute an appealable order?

(2) Did the filing of the original verified petition by the appellant bank to extend the time for filing claims in itself constitute the filing of a claim?

(3) Did the county court possess the power under sec. 324.05, Stats., to have granted the appellant bank's petition to amend the order which extended the time within which claims might be filed?

Appealability of Memorandum Decision

Even though the respondents have raised no issue with respect to whether the county court's memorandum decision of May 4, 1960, constituted an appealable order, it is the duty of this court to dismiss the appeal on our own motion if we conclude it is not. Mitler v. Associated Contractors, Inc., 1958, 3 Wis.2d 331, 88 N.W.2d 672. The enactment of SEC. 274.11 (4), STATS¹., by the 1959 legislature, which has extended the jurisdiction that may be conferred on this court by consent or waiver, has not abrogated the rule of the Mitler case. This is because the statute makes such extended jurisdiction contingent upon the trial court having entered an appealable order or judgment.

It is apparent that counsel for the appellant bank were not unmindful of the problem. This is because the notice of appeal read in part as follows: 'Farmers and Merchants Bank, Reedsburg, Wisconsin hereby appeals to the Supreme Court of the State of Wisconsin from * * * the whole of an order of the Court issued May 4, 1960 entitled 'Decision' and which in effect denies the allowance of an admittedly valid claim against the above estate.'

The only reference made in the memorandum decision to the possibility of the bank's original petition, which requested an extension of time within which claims might be filed, being determined to constitute a validly filed claim, is contained in the following paragraph of the decision:

'The court has given careful consideration to each of the contentions made in the brief of counsel for the creditor bank. The first contention is that the filing of a verified petition to extend the time for filing claims constituted the filing of a claim. The difficulty with that argument, it seems to me, is first that it was not demoninated a claim, but petition to extend the time the filing. Second it was apparently not so construed by the bank, because the bank did eventually get around to filing a claim in January of 1960; and, third, if it was a claim, then it wasn't a petition to extend, and as a claim it was filed after the time for filing claims had expired.'

The statutory definition of an 'order' is set forth in sec. 270.53(2), Stats., as follows:

'Every direction of a court or judge made or entered in writing and not included in a judgment is denominated an order.'

We do not consider that the word 'direction' appearing in such definition is to be construed narrowly so as to be confined to an express command, but rather should be interpreted broadly to embrace a ruling or adjudication as well. There is nothing stated in such decision that any further order is contemplated to be entered with respect to such motion. The prior holdings of this court establish that a memorandum opinion or decision may constitute an order if it in fact constitutes the final ruling of the court. State ex rel. Zilisch v. Auer, 1928, 197 Wis. 284, 287-288, 221 N.W. 860, 223 N.W. 123; Will of Pattison, 1926, 190 Wis. 289, 298, 207 N.W. 292; and Will of Jansen, 1923, 181 Wis. 83, 85, 193 N.W. 972, 49 A.L.R. 5. However, it is much the preferable practice for trial courts to draft and enter a separate order apart from the memorandum decision embodying the adjudication determined upon. State ex rel. Chinchilla Ranch, Inc. v. O'Connell, 1952, 261 Wis. 86, 94, 51 N.W.2d 714.

It is our conclusion that the afore-quoted extract from the memorandum decision constitutes the final ruling of the county court on the issue raised by the bank's motion that its original petition be determined to be its claim and allowed as such. Therefore, such ruling is an 'order' within the meaning of sec. 270.53(2), Stats. The effect of the bank's motion was to institute a special proceeding and such order terminated such proceeding. Therefore, it is a final order affecting a substantial right in a special proceeding and is appealable under sec. 274.33(2), Stats.

Petition to Extend Time as Being a Claim

The issue on the merits, which is raised by the appeal from the memorandum decision, is whether a petition or other written instrument filed in a probate proceeding, that is not denominated a claim and which does not apprise the court or the personal representative that it is intended to serve the purpose of a claim, may be held to constitute a claim against the estate of the deceased. It is our determination that such an instrument does not constitute a claim and is not to be allowed as such by the county court.

Counsel for the appellant bank cite Estate of Rule, 1958, 3 Wis.2d 301, 88 N.W.2d 734, and Estate of Beyer, 1924, 185 Wis. 23, 200 N.W. 772. These cases hold that no particular form is required by statute for filing claims against an estate. In the Rule case the test employed, in determining if the claim filed was sufficient to qualify as such, was whether it 'apprised the administrator and the heirs of the deceased of the nature and amount of the claim.' [3 Wis.2d 301, 88 N.W.2d 736.] Counsel argue that the bank's original petition met such test.

However, not a single authority has been cited in which it was held that an instrument never intended to be filed as a claim, and which by its very terms does not purport to be a claim, does nevertheless constitute a claim. It is in this respect that the bank's petition fails to qualify as a claim, and we deem this to be fatal to the contention advanced in behalf of the bank. It is essential in the orderly probate of estates that, before a filed instrument can be determined to constitute a claim against an estate, its form must be such as to apprise the court and the administrator, or executor, that it is intended to be such. The bank's petition not only was wholly insufficient to so apprise the court and the executor, but affirmatively made it clear that the bank was not then filing a claim but instead sought an extension of time in which to do so at a later time.

Power of the County Court to Grant Petition to Amend

It appears from the memorandum decision of the county court that the denial of the bank's petition to amend the order, which extended the time for filing claims for two months, was grounded upon the court's belief that it lacked the power to grant such petition. The memorandum decision made it clear that, if the matter were one lying within the discretion of the court, the court would have exercised such discretion to grant the relief prayed for. We quote from the memorandum decision as follows:

'The last, and most serious contention, is that the court, even though the order [extending the time for filing claims] was properly entered, now has power to amend the same. Certainly if the court felt that he had this power, notwithstanding the negligence of the creditor bank in failing to file its claim within the term of the first order, the court would now grant relief, if such relief were possible. I have carefully considered the cases as submitted, and I am satisfied that none of them are applicable here, and that the court having entered its order, and the time for filing thereunder having expired, that the court is now powerless to take any further action in the matter.'

A county court has power at any time to set aside an order or judgment entered by it which is void because the court did not have jurisdiction to enter it, or which was obtained by fraud. In re Fisher, 1862, 15 Wis. *511, *521; Estate of Cudahy, 1928, 196 Wis. 260, 263, 219 N.W. 203; Will of Pettee, 1954, 266 Wis. 347, 352, 63 N.W.2d 715; and Estate of Kammerer, 1959, 8 Wis.2d 494, 502, 99 N.W.2d 841. However, where there is no equitable ground, such as fraud, for setting aside an order or judgment, the county court's power to set aside or alter the same is subject to the time limits imposed by secs. 269.46 and 324.05, Stats., except in the very limited respect authorized by sec. 324.21, Stats.

We find it unnecessary to consider the possible application of sec. 269.46, Stats., to the instant case but will confine our inquiry to sec. 324.05, Stats., which is limited in its application to county courts. Such statute provides as follows:

'If any person aggrieved by any act of the county court shall, from any cause without fault on his part, omit to take his appeal within the time allowed, the court may, upon his petition and notice to the adverse party, and upon such terms and within such time as it shall deem reasonable, but not later than one year after the act complained of, allow an appeal, if justice appears to require it, with the same effect as though done seasonably; or the court may reopen the case and grant a retrial, but the order therefor must be made within one year after the act complained of.' (Italics supplied.)

We are disinclined to narrowly construe the statutory words 'a person aggrieved' so as to only authorize a party to move for the opening up of an order or judgment under sec. 324.05 who would have the right to appeal therefrom. We think the test in this respect should be whether such party will...