Hrdlicka v. Fish (In re Fish's Estate)

• Decision Date: 05 November 1929
• Citation: 227 N.W. 272,200 Wis. 61
• Parties: IN RE FISH'S ESTATE. HRDLICKA v. FISH.
• Court: Wisconsin Supreme Court

200 Wis. 61

227 N.W. 272

IN RE FISH'S ESTATE.

HRDLICKA

v.FISH.

Supreme Court of Wisconsin.

Nov. 5, 1929.

Appeal from orders of the County Court for Juneau County; Robert P. Clark, Judge.

Petition by Vivian Hrdlicka, executrix, to prove the will of Orra A. Fish, deceased, opposed by Luie Fish. From orders construing the will and denying the motion for a new trial, the executrix appeals. Appeal dismissed.--[By Editorial Staff.]

Proceedings begun August 29, 1927. Orders entered December 26, 1928.O. S. Loomis, of Mauston, for appellant.

Norman E. Van Dyke, of Kilbourn, and Grotophorst, Quale & Langer, of Baraboo, for respondent.

FRITZ, J.

On December 26, 1928, the county court of Juneau county entered orders construing the will of the deceased, and denying appellant's motion for a new trial. To appeal from those orders, a notice of appeal had to be served within 60 days from December 26, 1928, because of section 324.04, Stats., which provides that in counties having a population of over 15,000 (which includes Juneau county), the time within which an appeal may be taken to obtain a review by the Supreme Court of any order of the county court “is limited to sixty days from the date of the entry thereof.” No such notice was served on the judge or clerk of the county court until April 23, 1929, or on the attorneys of the adverse party until April 25, 1929. By stipulations entered into, from time to time, between the parties primarily affected by the orders of December 26, 1928, the time to settle a bill of exceptions and to take an appeal was extended to April 3, 1929. On April 2, 1929, and April 20, 1929, without any notice to the attorneys of the adverse party, the county court by order extended for 20 days the time to serve and settle a bill of exceptions, but no order was made by that court for the extension of the time to appeal from the orders of December 26, 1928. Likewise no application to the county court under section 324.05, Stats., or showing, as required by that section, has ever been made to the county court for leave to allow an appeal to be taken with the same effect as though seasonably done.

[1] Under those circumstances, there is no valid appeal to this court even though the record has been transmitted by the county court, or that court might, in its discretion, under section 324.05, Stats., upon such a showing and notice as that section prescribes, have by an order authorized an appeal after the expiration of the 60 days. Section 324.04, Stats., “grants to the person therein named the absolute right of appeal. That right must be exercised within 60 days. Even though the county court has power to authorize an appeal under certain circumstances after the expiration of 60 days, the absolute right of appeal is lost unless taken within 60 days.” Estate of McLean, 189 Wis. 567, 569, 208 N. W. 464, 465.

[2] Upon the expiration of 60 days from December 26, 1928, that absolute right to appeal was lost, and unless, upon a proper showing and hearing under section 324.05, Stats., pursuant to reasonable notice to the party adversely interested, the county court expressly...