Keske's Estate, In re
| Decision Date | 29 November 1966 |
| Citation | 33 Wis.2d 64,146 N.W.2d 450 |
| Parties | In re ESTATE of Oscar KESKE, Deceased. Myrtle KASTENMEIER, Appellant, v. Arthur KESKE, Respondent. |
| Court | Wisconsin Supreme Court |
Lueck & Skupniewitz, Beaver Dam for appellant.
Bruce R. Rasmussen, Beaver Dam. Williams, Williams & Meyer, Oshkosh, by Thomas S. Williams, Oshkosh, of counsel, for respondent.
The order which is before us is not an appealable one, and therefore this appeal must be dismissed. Even though this issue was not raised by the parties, it is our responsibility to examine the question of appealability on our own motion. Dombrowski v. Tomasino (1964), 24 Wis.2d 16, 127 N.W.2d 786; Lentz v. Northwestern Nat. Casualty Co. (1963), 19 Wis.2d 569, 120 N.W.2d 722; Yaeger v. Fenske (1962), 15 Wis.2d 572, 113 N.W.2d 411.
The order appealed from in this case provides for the appointment of a special administrator and fixes the bond, apparently pursuant to secs. 311.06(2) and 311.08, Stats. Such an order is not a 'final order' within a special proceedings under sec. 274.33(2), and therefore it is not appealable.
Sec. 324.01, Stats., provides that ch. 274 shall apply to appeals from orders or judgments of a county court. This court has ruled that the provisions of sec. 274.33 govern appeals from orders of a county court in probate matters. Will of Krause (1942), 240 Wis. 68, 2 N.W.2d 732. While interim orders in the course of a probate proceedings may qualify as final orders, as demonstrated by Estate of Bosse (1944), 246 Wis. 252, 16 N.W.2d 832, this cannot be said of the order in the case at bar.
The test for determining whether an order is a 'final order' was asserted by this court in Herman Andrae Electrical Co. v. Packard Plaza (1962), 16 Wis.2d 44, 48, 113 N.W.2d 567, 569:
See also Willing v. Porter (1954), 266 Wis. 428, 63 N.W.2d 729; A. J. Straus Paying Agency v. Caswell Building Co. (1938), 227 Wis. 353, 277 N.W. 648.
In Kingston v. Kingston (1905), 124 Wis. 263, 264, 102 N.W. 577, 578, where the trial court entered an order appointing a referee, this court discussed the appealability of such order and stated that a final order
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Boerner's Estate, In re
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