Gardner v. Estate of Callaghan

61 Wis. 91 | Wis. | 1884

Cassoday, J.

The six months within which creditors were limited by the county court to present their claims, expired November 2,1882, and the application for enlarging the time- so limited was not made until January 9, 1883, being more than two months thereafter. Not having been made within-two months after the expiration of the time so previously limited, it is claimed that the county court had lost all power to enlarge the same, under sec. 8840, E. S., and that the plaintiff’s claim was, therefore, forever barred, under sec. 3844, E. S. This last section provides, in effect, that every person having a claim against a deceased person, proper to be allowed by the court, who shall not, “ after notice given as required by ” sec. 3839, E. S., exhibit his claim to the court within the time limited for that purpose, “shall be forever barred from recovering such demand, or from setting off the same, in any action whatever.”

It will be observed that this section does not undertake to bar any creditor from presenting his claim, unless he fails to exhibit it to the court within the time limited, and “ after notice given as required by” sec. 3839. Was any such notice given in the case before us? That section provides, in effect, that the county court shall appoint convenient times and places when and where the court will receive, examine, and adjust such claims, and, within sixty days after granting letters testamentary, shall give notice of the times and places fixed for that purpose, and of the time limited for creditors to present their claims, by causing a notice thereof to be published in a newspaper, as provided in sec. 4045, E. S., for four successive weeks, or in such other manner as the court may direct; and also that the first publication, if any, shall be within ten days after making the order. Here the. county court did not, “ within sixty days after granting letters testamentary,” give the notice required in sec. 3839, nor any notice whatever during that period.

Letters testamentary were granted November 1, 1881. The record discloses no order made until more than six months after the granting of letters testamentary, and no notice given until-more than two months and a half after making the order. Sec. 3839 of the statute requires that the first publication of the notice shall be within ten days after making the order. But here the notice was not drawn until two months and a half after maldne- the order, and was not published until eighty-five days after making the order. The order of May 2, 1882, required the notice to be published “for four successive weeks,” as required by that section, but the affidavit of one of the publishers was to. the effect that it had been “ printed and published in said paper three successive weeks.” Sec. 4273, R. S. The compliance with sec. 3839, R. S., seems to be a condition precedent to the bar mentioned in sec. 3844, R. S.

The equitable powers of the county court to relieve a party misled by itself, seems to be ample. Brook v. Chappell, 34 Wis. 405; Appeal of Schœffner, 41 Wis. 260; Catlin v. Wheeler, 49 Wis. 520; Application of Wilber, 52 Wis. 297.

By the Oourt.— The order of the circuit court is reversed, and the cause is remanded with directions to affirm the orders of the county court.