SanBorn v. Perry

• Citation: 56 N.W. 337,86 Wis. 361
• Parties: SANBORN v. PERRY ET AL.
• Decision Date: 26 September 1893
• Court: Wisconsin Supreme Court

86 Wis. 361

56 N.W. 337

SANBORN

v.PERRY ET AL.

Supreme Court of Wisconsin.

Sept. 26, 1893.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Petition of John B. Sanborn for administration on the estate of William Hollinshead, deceased. From an order of the circuit court reversing an order of the county court denying the petition, William B. Perry and others, grantees by mesne conveyance of land of which Hollinshead died seized, appeal. Reversed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears, in effect, from the record that September 25, 1858, the plaintiff and one French recovered judgment in the district court for Ramsey county, Minn., against William Hollinshead for $3,674; that that judgment was affirmed on appeal by the supreme court of Minnesota, July 23, 1859, and the same was docketed August 16, 1859, and has never been paid; that February 20, 1860, said French died, and the plaintiff became the owner of the entire judgment; that December 25, 1860, the said William Hollinshead, being then and for a long time prior thereto a resident and citizen of said Ramsey county, died intestate, leaving a widow and four minor children; that thereupon his widow and one Masterson, since deceased, were apppointed to administer his said estate, which consisted of a large amount of property not inventoried, and a large amount of debts; that commissioners upon the claims against said estate were appointed by the probate court of Ramsey county in 1861, and again in 1871, but none of them ever qualified, and it does not appear that said estate was ever settled; that in 1889 the plaintiff petitioned the probate court of Ramsey county for the allowance of said judgment as a claim against said estate, and upon a hearing of that petition the said probate court disallowed said claim, and the whole thereof, October 9, 1889; that said petitioner thereupon appealed from said disallowance to the district court of said Ramsey county, and June 3, 1890, when such disallowance was affirmed, it was held by said district court on said appeal that said claim was barred by the statutes of limitation of Minnesota, and that the plaintiff was entitled to no relief, and judgment was entered therein accordingly; that November 18, 1890, upon proceedings properly had in the county court for Douglas county, Wis., a decree was entered to the effect that said heirs of the said William Hollinshead had inherited the lands of which he died seised in said Douglas county; that September 22, 1891, the plaintiff petitioned the county court for Douglas county for administration of said real estate in that county, and, due notice of the hearing of said petition having been given, the purchasers of said real estate from said heirs appeared and resisted the same; that after the hearing, and December 14, 1891, the said county court for Douglas county denied said application, principally on the ground that said judgment of the probate court of Ramsey county, affirmed in the district court of that county, is conclusive upon the rights of the plaintiff, and forever estopped him from asserting any claim on said judgment against said estate; that on appeal from that judgment to the circuit court for Douglas county, and hearing had, the same was, December 19, 1892, reversed, and remanded for further proceedings according to law, and judgment was therein ordered against these defendants for the plaintiff's costs and disbursements, to be taxed; and from the judgment entered thereon accordingly the defendants bring this appeal.Catlin & Butler, Carl C. Pope, and Swift, Murphy & Bundy, for appellants.

W. M. Gill and Charles J. Berryhill, for respondent.

CASSODAY, J., (after stating the facts).

Counsel for the plaintiff moves to dismiss the appeal on the ground that it is taken from a mere interlocutory order by which the defendants are no way aggrieved. But, as indicated in the foregoing statement, the appeal is from a judgment inflicting costs upon the defendants, and is clearly appealable. Cleveland v. Burnham, 60 Wis. 16, 17 N. W. Rep. 126, and 18 N. W. Rep. 190;Sutton v. Wegner, 72 Wis. 294, 39 N. W. Rep. 775. The motion to dismiss is denied.

The question presented by the record turns upon the effect to be given to the disallowance of the plaintiff's claim by the probate court of Ramsey county, Minn., October 9, 1889, and the affirmance thereof by the district court of the same county, June 3, 1890. By the stipulation and agreement of the parties made in the trial court, and of record herein, the statutes and laws of Minnesota, and the decisions of the supreme court of that state, as to the questions here involved, are to be considered and taken as evidence in this case. The debtor died December 25, 1860, and administrators of his estate were thereupon appointed by the probate court of Ramsey county, in which he resided at the time of his death. Upon granting letters of administration, the statute of that state required commissioners to be appointed to examine and adjust all claims and demands against the estate. Section 1, c. 53, Gen. St. 1878. The statutes of that state also required the probate court to limit the time within which such claims should be presented, not exceeding 18 months in the first instance, and which time the court was at liberty to extend, so that the whole time should not exceed two years from the time of...