In re Baker

72 Wis. 395 | Wis. | 1888

Taylor, J.

ETo bill of exceptions was settled in the case, and upon this appeal this court can pass only upon such matters as appear on the face of the record of the case. -The record shows no exceptions taken to the order of the court requiring the assignee to make a further and itemized report of his accounts, etc., made July 2, 1887; nor is any exception taken because the court did not, upon the application then made by Hughes, require the assignee, Benton, to pay over to him any sum or sums of money in his hands and not then expended. All parties seem to have been satisfied with the order requiring a further and itemized statement of his accounts and of the sums paid out for attorney’s fees. When-this account was filed no further action was taken by the appellant Hughes until the 17th of October, 1887, two months and a half after such account was filed. Then he filed an affidavit, and obtained an order to show cause, dated October 24, 1887. On the hearing of this order to show cause, the circuit court dismissed the order, for the reasons stated therein, viz., “ that the time to file objections to said account had long since expired, and no objection thereto had been filed for or on behalf of said Hughes; and no application for leave to file such objections after the time having been made, and the written stipulation of said John Hughes having been filed consenting to the allowance of said final account,” the order to show cause is dismissed. To this order exceptions were taken by-said Hughes, and exceptions were also taken to the fijnal order settling the accounts of the assignee and discharging him from his trusts as such assignee.

It is very clear that this court cannot reverse the final order upon its merits without the settlement of a bill of exceptions, as the order shows on its face that, it was made after hearing the evidence, as well as upon a simple examination of the account. We must presume that the account was sustained by the evidence produced before the court, in the absence of a bill of exceptions showing the evidence or showing that no evidence was in fact produced before the court on such final hearing.

But it is urged that the court erred in discharging the order to show cause, made on the 24th day of December, 1887. Upon this appeal we think this intermediate order is also before this court for review. See sec. 3070, R. S. And if there is enough in the record to show that it was erroneously discharged, we think it is an order affecting the merits of the case, and an error in refusing to grant it would be such an error as should-reverse the final order or judgment in the case. The learned counsel for the appellant insist that they were entitled to this order under the provisions of ch. 240, Lawn of 1883. We do not think the order was made under that law. That chapter seems to be intended to aid the parties in an assignment to obtain evidence to be used on the final hearing, or perhaps before the final hearing. This order was undoubtedly made by the circuit court as an exercise of its powers as a court, and not under that statute. Is there enough in the record to justify us in reversing the order of the court dismissing the same? We are clearly of the opinion that there is not.

The order recites that no objections were taken to the account filed, and that no application for an extension of time had been made, and also that a written stipulation by Hughes consenting to the allowance of the account had been filed in the case. It is true there is no such stipulation returned to this court, but such stipulation is. referred to in the affidavit of Hughes made July 2, 1887, upon which he obtained the first order to show cause above referred to. Theré are no formal objections made to the allowance of the account of the assignee except, those made by John C. Pierron, June 20, 1887. Pierron having made an assignment long before that time under the insolvent laws of this state, was no longer a creditor of Baker, and had no authority to make objections to the allowance of the account of Baker’s assignee. If the affidavit made by Hughes on the 17th day of October, 1887, could be treated as objections to the account of the assignee, we cannot saj'’ upon this record that such objections were filed in time. The statute evidently contemplates that objections shall be taken by the creditors at the time fixed for the final settlement of the accounts. That time was fixed, as appears from the recitals in the order of settlement, on the 20th of June, 1887.

We are unable to say upon this record that any error was committed by the circuit court in proceeding to discharge .said assignee, or in allowing his accounts.

By the Oourt.— The order appealed from is affirmed.