154 Wis. 8 | Wis. | 1913
Sec. 3982, Stats., authorizes a guardian, with tbe approval of tbe county judge, to adjust, compromise, and discharge any and all claims for damage which bis ward may have. Renholt Gustafson was on February 19, 1912, while in tbe employment of Whitney Brothers Company, injured by tbe negligence of tbe latter. He was taken to the hospital and remained there until March 6, 1912, and he became twenty-one years of age on July 2, 1912. Upon his petition and that of bis mother, Marry Gustafson, the latter was appointed his guardian by the county court of Douglas county and thereafter made a petition to the county court for permission to settle the claim of Renholt Gustafson against Whitney Brothers Company for $150. The county court on May 25, 1912, made an order authorizing the guardian to settle and compromise the said claim of Renholt. On the same day she reported that she had so settled and compromised and executed a release in full, and thereupon the county judge approved and confirmed the settlement and compromise. The sum of $150 was, pursuant to this settlement, paid by the defendant to Benholt on the same day. On September 13, 1912, something over two months after Renholt reached the age of twenty-one years and over three months after the making of the orders mentioned, he and his mother filed a petition in the circuit court for an order extending the time for taking an appeal from such orders. The circuit court denied the application, and from that denial this appeal is taken. The application for the order extending the time within which to appeal set forth as an excuse for not taking
The statute under which the application to extend the time was made, sec. 4035, permits such extension in cases where the person desiring to appeal shall from any cause without fault on his part have omitted to take the appeal according to law, that is within the sixty days allowed for that purpose. In such case the circuit court may, if it shall appear
It is apparent that tbe compromise and settlement was made with great formality and deliberation and acquiesced in for a considerable time. Tbe injury must have been quite severe, although there was no obvious or apparent indication of permanent incapacity. There was an abdominal operation for some purpose not clearly disclosed, and Benholt continued to feel soreness and pain after tbe settlement which has continued ever since and recently has slightly increased, and at no time since tbe settlement has it decreased. There is. also a weakness in tbe lower part of tbe abdomen, which-weakness increases with exertion — lifting, reaching, or other motions of tbe body. In August, 1912, Renholt began to suspect that be was ruptured, and upon describing bis feelings to friends they confirmed him in this opinion, whereupon be consulted an attorney on September 5, 1912, and on the same day submitted to an examination by a physician, who informed him that be bad a severe hernia and that bis work was attended with great danger of increasing this. Mary Gustafson submitted an affidavit corroborating tbe statements in that of Renholt, and Dr. Orchard, tbe physician who examined Renholt, on September 8, 1912, submitted an affidavit that be found Renholt bad a serious hernia or rupture and tbe same was likely to increase and must necessarily interfere with bis work as a laboring man, and that necessary exertions were liable to greatly extend this hernia and cause tbe same to be strangulated and lead to
If the circuit court had extended the time to appeal, his order to that effect would undoubtedly be affirmed; but we discover no abuse of discretion in his refusal. The proceedings were ex parte. They disclose the capacity of and the probability of a serious contest as to good faith of the opinions and representations made by O’Brien and Meyers, and no great assurance that Renholt could upset the settlement made. This is the very situation that the statute is intended to cover, set at rest, and conclude by a settlement made before an impartial public officer and under authority of the statutes referred to. If the authorization of the county judge was obtained by fraud upon the court, Renholt is not without remedy, but otherwise he must, like other suitors under like circumstances, be controlled by the discretion of the circuit court with reference to the time of appeal.
By the Court. — Order affirmed.