Stoeber's Estate, In re

• Decision Date: 31 October 1967
• Parties: In re ESTATE of Frances Miller STOEBER, Decd. SHRINER'S HOSPITAL FOR CRIPPLED CHILDREN et al., Appellants, v. M. Elizabeth PIERCE, Respondent.
• Court: Wisconsin Supreme Court

Page 599

153 N.W.2d 599

36 Wis.2d 448

In re ESTATE of Frances Miller STOEBER, Decd SHRINER'S HOSPITAL FOR CRIPPLED CHILDREN et al., Appellants, v. M. Elizabeth PIERCE, Respondent.

Supreme Court of Wisconsin.

Oct. 31, 1967.

Jasper, Winner, Perina & Rouse, Madison, for respondent, Stephen C. Jones, Madison, of counsel.

HEFFERNAN, Justice.

Respondent takes the position that the order which the residuary legatee seeks to have reviewed by this court is nonappealable. If that contention is correct, the appeal must be dismissed and this court is foreclosed from inquiry into the merits.

'The appealability of an order, or judgment, is a matter going to the subject matter jurisdiction of the supreme court. The court has no subject matter jurisdiction if the matter is not appealable, * * *. If the matter is not appealable, it is the duty of the court to dismiss the appeal on its own motion, even though the parties may not have raised the issue.' Walther, Appellate Practice, p. 1.

The following statutory provision is determinative of this issue:

'274.33 Appealable orders. The following orders when made by the court may be appealed to the supreme court:

'(1) * * *

'(2) A final order affecting a substantial right made in special proceedings, without regard to whether the proceedings involve new or old rights, remedies or proceedings and whether or not the right to appeal is given by the statute which created the right, remedy or proceedings, or made upon a summary application in an action after judgment.'

It is clear that this is the section to be used in determining appealability from a probate court. Matters in probate are not actions as defined in sec. 260.03, Stats., ² and, hence, fall under the category of special proceedings, as provided in sec. 260.02. ³

For the order to be appealable it must be both 'final,' and one affecting a 'substantial right.' We conclude that the order is not final.

In the case of Herman Andrae Electrical Co. v. Packard Plaza (1962), 16 Wis.2d 44, 48, 113 N.W.2d 567, 569, we said:

'This court has stated that the test to determine whether an order is a 'final order' is its effect on the rights of the parties. If an order closes the matter and precludes further hearing and investigation it is final; but an order which does not completely dispose of the subject matter and settle the rights of the parties is not final. 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.'

The standard set forth in Andrae, supra, was recently quoted with approval in Estate of Keske (1966), 33 Wis.2d 64, 68, 149 N.W.2d 450.

An earlier case, Kingston v. Kingston (1905), 124 Wis. 263, 102 N.W. 577, 578, said:

'A final order in a special proceeding, within the meaning of this statute, is one which determines and disposes finally of the proceeding--one which, so long as it stands, precludes any further steps therein. It bears the same relation to the proceeding in which it is entered as the final judgment bears to an action.'

A similar, though not identical, situation was faced by this court in Estate of Benesch (1932), 206 Wis. 582, 585, 240 N.W. 127, 128. In that case the appeal was from an order extending the time in which to file a claim against the estate. We therein said:

'These orders permit the filing of claims against the estate. They therefore do not prevent a final judgment from which an appeal may be taken. The question of whether the time within which the claims could have been filed was properly extended may be raised upon an appeal from the judgment entered upon such claim. * * * orders are not appealable where they extend the time so that the claim may be filed, which may eventuate in a final judgment from which an appeal may be taken.'

We deem these cases and their rationale controlling.

The order permitting the amendment does not finally dispose of the proceedings determining claims. Although the amendment be permitted, the appellant has a very real remedy in the appeal from the judgment upon claims. It should also be noted that the record fails to show that there has yet been a hearing on the claim of this respondent. This is not the kind of an order that, in the words of Andrae, supra, 16 Wis.2d page 48, 113 N.W.2d page 569, 'precludes further hearing and investigation.' Thus, procedural devices, as well as substantive remedies, remain available to the objector. The residuary legatee takes the position that leave to file an amended claim denies it (the residuary legatee) the right to be heard upon the claim that was originally filed but was superseded by the amendment. Conceding, arguendo, the truth of that statement, appellant does not make it clear why this is relevant, particularly as it appears from the record that a portion of the amended claim encompasses the claim first asserted....