C. & J. Michel Brewing Co. v. Estate of Wightman, 97 Wis. 657

C. & J. Michel Brewing Co. v. Estate of Wightman

97 Wis. 657 | Wis. | 1897

Newmau, J.

Two grounds are urged for the reversal of the judgment of the trial court: (1) That the trial court had no jurisdiction of the case, because no sufficient undertaking on appeal was given; (2) that the plaintiff’s claim was barred by its failure to present it for allowance within the time limited for that purpose.

*660No doubt the undertaking must comply substantially with the statute, or the appellate court gets no jurisdiction. But a substantial compliance with the statute is sufficient to confer jurisdiction on the appellate court. Kasson v. Estate of Brocker, 47 Wis. 79; West v. Eau Claire, 89 Wis. 31. The statute (R. S. sec. 4032) requires that, in order that the appeal shall have effect, the party appealing shall file an undertaking “to the effect that he will diligently prosecute his appeal to effect.” So the question is, not whether the undertaking, is in strict, literal compliance with the statute, but whether it is, in substance, to the same effect. The undertaking actually filed was in literal compliance with the statute, except that it omitted the words “ to effect.” If, by reason of the omission of these words, the undertaking fails ¡to import the substance of all that is intended by the statute, ■then it is not to the effect required, and is insufficient to confer jurisdiction upon the appellate court. If it lacks not, in substance, of the effect intended, it is sufficient. It was said in Kasson v. Estate of Brocker, supra, that the words “diligently prosecute ” “ to effect ” mean only that he will prosecute the appeal with due diligence to final issue or judgment. With that interpretation of the words of the statute, it is -difficult to see wherein the undertaking given in this case fails of the substance required in the statutory undertaking, for diligent prosecution must necessarily bring the appeal to final issue and judgment. So it is considered that the undertaking given, being to the same effect as provided by the ■statute, was sufficient to confer jurisdiction of the case upon the circuit court.

The bond of the decedent was for the faithful performance of his contract of agency by Loveless until that contract should be terminated. The amount due from Loveless to the plaintiff on that contract at the date of its termination constitutes one indivisible claim or cause of action. It could not be separated so as to be the basis of several *661claims or causes of action. It did not accrue in that form before the termination of the agency, nor until after the time limited for the presentation of claims against the estate of Wight-man had expired. It was then a claim proper to-be audited, under E. S. sec. 8860, after the expiration of that time. It does not seem to be important if parts of this gross claim could have been considered due at an earlier date. The several items or parts have now become merged in the one claim which accrued and matured at the termination of the agency. And this works no detriment to the estate of the decedent, for the accounts of the agency show a larger liability at the time when accounts against the estate were audited than at the end of the agency. In the intervening time payments were in excess of new liability incurred. This operates a relief pro tanto of the estate.

By the Gowrt.— The judgment of the circuit court is affirmed.