Loewenbach v. Loewenbach (In re Loewenbach's Will)

• Decision Date: 10 January 1933
• Citation: 210 Wis. 253,246 N.W. 332
• Parties: IN RE LOEWENBACH'S WILL. LOEWENBACH ET AL. v. LOEWENBACH ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 253

246 N.W. 332

IN RE LOEWENBACH'S WILL.LOEWENBACH ET AL.

v.LOEWENBACH ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1933.

Appeal from an order of the County Court of Milwaukee County; F. W. Bucklin, Judge.

Affirmed.

Herbert Loewenbach and Lucile E. Strauss, beneficiaries and executors under an alleged will of Hugo Loewenbach, deceased, appeal from an order dated June 29, 1932, which, after the time to appeal had expired (1) Allowed Erwin B. Loewenbach, who had filed objections to the probate of the will, ten days to perfect an appeal from an order that admitted the will to probate; (2) which extended for thirty days the time to serve a bill of exceptions; and (3) which fixed the amount of the undertaking to be given by the appellant on the appeal at $250.McGovern, Curtis & Devos, of Milwaukee, for appellants.

Hugo J. Trost and E. D. Fitzpatrick, both of Milwaukee, for respondents.

FRITZ, J.

Promptly after a petition was filed to probate an instrument as the will of Hugo Loewenbach, deceased, objections thereto were filed by Erwin B. Loewenbach.Judgment admitting the will to probate was entered on March 4, 1932, and notice of entry thereof was served on Erwin B. Loewenbach on March 11, 1932.On March 29, 1932, an order was entered on the application of Erwin B. Loewenbach, which provided for the service of his notice of appeal on the registrar of probate, and on the attorneys for the proponents of the will; and the court approved an undertaking on appeal, which was then submitted.A notice of appeal by Erwin B. Loewenbach was served on the registrar of probate on March 29, 1932, and on the proponents' attorneys on April 1, 1932, but no notice was served on the proponents, Herbert Loewenbach and Lucile E. Strauss, personally.Likewise, no application had been made for an order fixing the amount of the undertaking on such an appeal, and no such order had been entered.Because of those omissions and defects in the attempt of the attorneys for Erwin B. Loewenbach to take an appeal on his behalf, an order was entered on May 21, 1932, adjudging that the attempted appeal was void.On May 25, 1932, on an affidavit and application by Erwin B. Loewenbach, the proponents were ordered to show cause why the court should not enter an order which would permit the applicant to take and perfect an appeal from the judgment admitting the will to probate, and which would also extend the time to serve a bill of exceptions.In his affidavit Erwin B. Loewenbach stated that immediately after the service of the notice of entry of judgment he requested his attorneys to appeal; that he intended in good faith to appeal, and was ready to do everything necessary to appeal; that within five days after the entry of judgment he had ordered a transcript of the proceedings on the trial; that he had paid for 1,800 pages of transcript; and that his bill of exceptions would have been ready within the period prescribed by statute.In a counter affidavit, one of the proponents asserts that delay in consequence of a stay of proceedings is apt to result in probable consequential damages of $100,000, because of financial conditions affecting real property of the estate.The probability of that loss was conceded on the hearing.On June 29, 1932, the court entered an order which allowed Erwin B. Loewenbach to take and perfect an appeal within ten days, and to serve his bill of exceptions within thirty days, and which fixed $250 as the amount of the undertaking on appeal.Herbert G. Loewenbach and Lucile E. Strauss, in appealing from that order, contend that, in so far as the order allowed Erwin B. Loewenbach to take an appeal, it was erroneous because there was no showing (as required to entitle a party to relief under section 324.05, Stats.)(1) that he was without fault in omitting, in the first instance, to perfect an appeal according to law; and (2) that justice requires the revision of the case.

[1][2][3][4][5] The attempt to appeal on March 29, 1932, failed only because of errors of law, in that there was no proper service on the adverse parties, and no notice had been given of an application for an order, and no order had been made, which fixed the amount of the undertaking for that appeal.Otherwise the appeal would have been timely.That it was undoubtedly being taken in good faith and not for delay is demonstrated by the dispatch, including the procuring of the expensive transcript, with which Erwin B. Loewenbach and his attorneys acted.It is manifest that the default in properly perfecting the appeal occurred because of mere technical errors in procedure, which were committed by his attorneys, and without any fault in fact on his part, and in relation to which it is unlikely that he, as a layman, had any actual knowledge or understanding.Under those circumstances, it was permissible to relieve him from that default under the rule that “defaults incurred through the ill advice or negligence of counsel are to be relieved against as well as any others.”Hilgermann's Estate(Wis.)243 N. W. 753, 755.To the cases then cited may be added Oakley v. Davidson, 103 Wis. 98, 79 N. W. 27, 29.That decision and the cases therein cited afford ample precedent for the conclusion that the default in perfecting the appeal in the case at bar was sufficiently excused within the meaning of section 324.05, Stats., under the liberal construction which it has uniformly received by this court.In consonance with that rule of construction, it is established that the provision in the statute, that “it shall appear that justice requires a revision of the case,” does not mean that it must appear that justice requires a reversal of the order or judgment which is to be reviewed on an appeal.As this court said in Oakley v. Davidson, supra, “Certainly, it would be difficult to determine what justice requires upon conflicting affidavits.It is not an appropriate way of ascertaining justice.”

It is sufficient if the facts and circumstances, as disclosed by the record and proceedings, are such that the trial court is...