73 Wis. 126 | Wis. | 1888
The appellant was appointed administrator with the will annexed of the estate of Dennis Eyan, deceased, March 15,1810. The county court, upon the application of the respondents as creditors of said estate, on September 5, 1S82, made an order requiring the appellant to file an itemized account of his receipts and disbursements as such administrator, on or before the 19th day of said month, and he filed said account April 30,1883, and the respondents filed their objections to the same February 12, 1884. The appellant afterwards filed his final account as follows: Debit: Personal property claimed by the widow, $61.50; received from sale of pine timber (from certain pine lands in Waupaca county), $800, making $861.50. Credit: Property claimed by widow, $61.50; cash paid to widow, $190; cash as expense of last sickness, $56.50; cash paid as expense of administration, $123.19; making in all $431.19; leaving a balance in his hands of $430.31. With said account the appellant filed a petition stating, in short, that
The first point made by the learned counsel of the appellant is that the circuit court could not set aside its first decision at a subsequent term. It might be a sufficient answer that no judgment was entered, and the decision only was announced, but the court had ample power by the statute (sec. 2832, R. S.) to relieve the respondents from such decision, on account of their excusable neglect and surprise, which were shown by affidavit. McLaren v. Kehlor, 22 Wis. 300; Seymour v. Chippewa Co. 40 Wis. 62; Lampson v. Bowen, 41 Wis. 484; Whitney v. Karner, 44 Wis. 563; McKnight v. Livingston, 46 Wis. 356.
The only other question is on the merits. The circuit court must have found that the appellant did not use due care to protect said moneys from loss by theft, for we will not assume, in the absence of any written findings of the particular facts, that the court found that the money was not stolen. It is unnecessary to review the evidence, which
By the Court.— The judgment of the circuit court is affirmed.