Weadock v. Ray

• Decision Date: 15 October 1901
• Citation: 111 Wis. 489,87 N.W. 477
• Parties: WEADOCK v. RAY.
• Court: Wisconsin Supreme Court

111 Wis. 489

87 N.W. 477

WEADOCK

v.RAY.

Supreme Court of Wisconsin.

Oct. 15, 1901.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Proceeding by Thomas A. E. Weadock, as executor of the estate of Edwin V. Mundy, deceased, to vacate an order requiring payment of a claim in favor of Robert C. Ray. From a judgment affirming the county court's order denying the petition, the executor appeals. Affirmed.

This is an appeal by the executor above named from a judgment of the circuit court of Douglas county affirming the judgment of the county court of said county, which denied the executor's petition to vacate an order of the county court dated August 7, 1893, requiring the executor to pay the claim of the respondent out of the assets of the estate of E. V. Mundy on or before October 7, 1893. The order which is sought to be set aside in this proceeding is the same order forming the basis of the action of Roberts v. Weadock, which has been twice in this court, the first appeal being reported in 98 Wis. 400, 74 N. W. 93, and the second appeal being decided herewith. 87 N. W. 461. By reference to the two opinions above referred to, the facts with regard to the entry of the said order will be sufficiently ascertained without restatement. After the decision of this court upon the first appeal, and in the month of February, 1898, Mr. Weadock, the executor, filed his petition in the county court of Douglas county to set aside and vacate the order of August 7, 1893, upon various grounds, among others that the county court had no jurisdiction to make said order; that the said executor was not served with any notice of the application for said order; that he did not authorize any attorney to appear for him on said application; that he did not appear personally at the time said order was made, and had no knowledge thereof; and that, as matter of fact, he had no assets of said estate in his hands with which he could comply with said order. The respondent, Ray, made answer to the petition, and the matter was heard before the county court, and resulted in an order denying the prayer of the petition. Thereupon, an appeal was taken to the circuit court by the executor. In the circuit court a new trial was had, and the court made findings of fact, in which he found, among other things, that the order allowing the Ray claim was made on the 7th day of August, 1893; that the appellant was not present or represented by attorneys at the time said order was made, but was informed thereof by letter not later than August 15, 1893; that he failed to pay the claim as allowed, and that on February 16, 1894, application was made to the county court by the respondent, Ray, for permission to sue Mr. Weadock and the sureties in the bond; that, upon this application, Mr. Weadock appealed, and the matter was adjourned from time to time until October 16, 1894, when an order was made granting leave to sue Mr. Weadock on his executor's bond; that said action was brought November 20, 1894, and was thereafter tried, resulting in a judgment of nonsuit July 8, 1897, which judgment was reversed upon appeal to this court, and the action remanded for a new trial; that, at the time the order of August 7, 1893, was entered, Mr. Weadock had been acting as executor for two years; that the time for creditors to file claims had long since expired; that an inventory of the estate filed prior to August 7, 1893...