Roeder v. Maurer (In re Maurer's Estate)

• Decision Date: 07 May 1940
• Citation: 291 N.W. 764,234 Wis. 601
• Parties: In re MAURER'S ESTATE. In re MAURER. ROEDER v. MAURER et al.
• Court: Wisconsin Supreme Court

234 Wis. 601

291 N.W. 764

In re MAURER'S ESTATE.In re MAURER.ROEDER

v.MAURER et al.

Supreme Court of Wisconsin.

May 7, 1940.

Appeal from an order of the County Court of Dodge County; W. C. O'Connell, Judge.

Proceeding in the matter of the estate of George E. Maurer, deceased, wherein Pauline Maurer filed a claim. From an order directing entry of judgment in favor of claimant, Otto E. Roeder, acting for himself and Emma L. Henderschott, etc., appeals.-[By Editorial Staff].

Appeal dismissed.

Claim of Pauline Maurer against the estate of George E. Maurer, deceased, who died intestate. From an order directing entry of judgment in favor of the claimant the heirs of the deceased appeal.

Thomas J. Brown, of Milwaukee; for appellants.

Herbert J. Gergen, of Beaver Dam, and Paul A. Hemmy, Jr., of Juneau (Wilkie, Toebaas, Hart, Kraege & Jackman and W. E. Torkelson, all of Madison, of counsel), for respondents.

FOWLER, Justice.

The respondent contends that this court is without jurisdiction because the order appealed from is not appealable. We are constrained to sustain this contention. No claims were filed against the estate but that of claimant. Her claim consisted of many separate items. Hearing on the claim was duly had and the county judge filed a writingconsisting of five typewritten eight by twelve pages which he denominated and which is endorsed as a “Decision on claim of Pauline Maurer,” in which he considered each item separately and found the amount due therefor. This writing concludes as follows: “Judgment may be entered for the amount in favor of Mrs. Maurer against the estate of George E. Maurer, deceased, for the amount set forth in this opinion, namely the sum of $1,731.43.” The notice of appeal reads that the appeal is “from the judgment, order or decision rendered and entered *** which allowed that: (here follows the language of the order above quoted) ***”

[1]Appeals from the county courts to this court are governed by sec. 324.01(2), Stats. This subsec. provides that Ch. 274, Stats., which governs appeals to this court in civil actions and special proceedings, applies to appeals from the county court to this court. Sec. 274.33 which is contained in Ch. 274 declares what orders are appealable, and subsec. (1) thereof is the provision applicable to the instant order. It provides that an appealable order is one “affecting a substantial right *** when such order in effect determines the action and prevents a judgment from which an appeal might be taken.” The instant “decision” is by its terms an order for judgment. It does not prevent, but in fact expressly directs, entry of “a judgment from which an appeal might be taken.” It therefore is not an appealable order.

[2][3]It is said in Will of Pattison, 190 Wis. 289, 298, 207 N.W. 292, that if a writing filed by the county court be considered as findings this court is without jurisdiction to review it. It is also said, at page 296 of 190 Wis., at page 295 of 207 N.W.: “If we consider the ‘opinion and decision’ as being in the nature of findings as it evidently was considered by the trial court, then it had not yet ripened into anything appealable,” citing numerous cases. To the same effect is Estate of Lewis, 207 Wis. 155, 240 N.W. 818. It is true that in Will of Pattison, supra, it is said that the substance and nature of the thing from which an appeal is attempted to be taken, rather than the name given to it by the court or the parties, determines whether it is appealable, and the court in that case construed the thing there denominated as a “decision and opinion” as appealable. The appellants cite three cases that involved particular “decisions” which were held appealable upon this statement in the Pattison Will case, supra. Will of Jansen, 181 Wis. 83, 193 N.W. 972, 49 A.L.R. 5, and Will of Stanley 228 Wis. 530, 280 N.W. 685, both of which involved construction of a will, were so cited. In the former the court had filed a paper it denominated “Findings of Fact and Conclusions of Law” in which the will “was formally construed.” It is there said that there is no occasion to file findings of fact and conclusions of law in a case for construction of a will. That the better practice is to incorporate the construction in a formal decree. But as the portion of the writing of the court appealed from did construe the will, the court gave it effect as such. It is not mentioned in the opinion but there was also an appeal from the order settling the final account of the executor and assigning the estate to the widow “in accordance with the terms of the will, as construed by this (county) court.” It thus appears that the county court itself had treated its so-called “Findings of Fact and Conclusions of Law” as a final determination and given effect to it as such in its final order settling the estate. In neither case was there an express direction to enter judgment. Neither case required the filing of any “finding of fact or conclusions of law.” In the instant case findings of fact were necessary such as were incorporated in the writing denominated by the court “Decision on claims.” The instant decision constituted findings of fact, no matter what the court called them, Will of Daniels, 225 Wis. 502, 503, 510, 274 N.W. 435, and the court's direction plainly and undeniably was a conclusion of law that the claimant was entitled to judgment for the amount found and an order directing the entry of judgment for such amount. If the instant writing of the court is subject to appeal, then every “finding of fact and conclusions of law” which sec. 274.33, Stats., requires to be filed in every civil action tried by a court is so subject. But a mere finding not ripened into a judgment is not appealable; nor is an order directing judgment. Witt v. Wonser...