Guardianship of Barnes, In re

• Decision Date: 09 April 1957
• Parties: In re Guardianship of George BARNES, a mentally ill person. Violet GALSTER, individually and as executrix, etc., Appellant, v. FIRST NATIONAL BANK OF KENOSHA, Guardian, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 211

82 N.W.2d 211

275 Wis. 356

In re Guardianship of George BARNES, a mentally ill person.

Violet GALSTER, individually and as executrix, etc., Appellant, v. FIRST NATIONAL BANK OF KENOSHA, Guardian, et al., Respondents.

Supreme Court of Wisconsin.

April 9, 1957.

Lucareli & Lucareli, Kenosha, William J. H. Evans, Racine, of counsel, for appellant.

Cavanagh, Mittelstaed, Sheldon, Heide & Hartley, Kenosha, for respondents.

BROADFOOT, Justice.

The guardian has moved to dismiss the appeal for the reason that the notices of appeal were not served until September 18, 1956, which was in excess of 60 days from the date of the entry of the order appealed from.

Sec. 324.04, Stats., provides that an appeal to this court from any order or judgment of the county court is limited to 60 days from the date of entry thereof, unless an extension of time is granted by the county court as provided in sec. 324.05, Stats. No such application appears in the record. The executrix contends that the appeal is proper under the provisions of sec. 269.51(1), Stats., for the reason that the guardian accepted and retained the appellant's notice of appeal and the briefs in the instant case before the motion was made to dismiss, and that this constituted such participation in the proceedings in this court as to waive all objection to the jurisdiction of this appeal. The motion to dismiss was made returnable on the date the case was set for argument in this court. The guardian not only accepted and retained the briefs of the appellant but filed its own brief that contained arguments upon the merits.

In Estate of Maas v. W. R. Arthur & Co., 239 Wis. 581, 586, 2 N.W.2d 238, 241, this court said:

'* * * In re Estate of Fish, 200 Wis. 61, 227 N.W. 272, is cited by respondent to the point that where notice of appeal has not been timely served this court does not acquire jurisdiction although the respondent stipulates waiving the want of service and affirmatively requests that the court take jurisdiction. It is urged that if the party can not waive by stipulation he can not waive by conduct under a statute. There is a difference. The effect of a waiver by conduct creating a statutory waiver is in effect a conferring of jurisdiction by the statute, not by action of the court dispensing with timely service. * * *'

In re Estate of Sweeney, 247 Wis. 376, at page 381, 19 N.W.2d 849, at page 851, this court cited with approval the Maas case, supra, when it said:

'The parties not served except the Bishop of La Crosse, have in no way appeared in this Court. What other parties have done cannot in any event be held to be a waiver of the rights of those parties who have not appeared and who have not participated. Sec. 269.51, Stats., can only apply where there has been a service of a notice within the time prescribed by statute unless a party has participated in a proceeding in this Court. Then the right of appeal does not come from the extension of time but from the statute itself. Maas v. W. R. Arthur & Co., 1942, 239 Wis. 581, 586, 2 N.W.2d 238.'

In the Sweeney case some necessary parties had not been served. There was still time for the appellants to make application to the county court for an extension of time to take the appeal. This court remanded the record to permit the appellants to apply for such extension under the provisions of sec. 324.05, Stats., stating that it was a matter for the trial court to pass upon and that it was within its discretion. This same rule was followed in Re Estate of White, 256 Wis. 467, at pages 471-472, 41 N.W.2d 776, at pages 777-778, in the following language:

'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 & 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 never 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., 1946, 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 of Sweeney, 1945, 247 Wis. 376, 19 N.W.2d 849.'

Upon the authority of said cases the motion to dismiss the appeal is denied.

Upon the merits, the record shows several instances in which the guardian was derelict in its duty. It has never filed an inventory, although with its petition filed in January, 1955, it attached a document called 'A Statement for Inventory'; it never requested the appointment of appraisers, nor were any ever appointed; no annual accounts were filed. At the time the guardian was appointed its ward was the owner of land in joint tenancy with a Miss Albert, upon which was located a cottage. This property was near a lake. The cottage contained some personal property. No attempt was made to inventory the personal property within the cottage nor to find out to whom it belonged....