210 Wis. 253 | Wis. | 1933
Promptly after a petition was filed to probate an instrument as the will of Hugo Loewenbach, deceased, objections thereto were filed by Erwin B. Loewenbach. Judgment admitting the will to probate was entered on March 4, 1932, and notice of entry thereof was served on Erwin B. Loewenbach on March 11, 1932. On March 29, 1932, an order was entered on the application of Erwin B. Loewen-bach, which provided for the service of his notice of appeal on the register in probate, and on the attorneys for the proponents of the will; and the court approved an undertaking on appeal, which was then submitted. A notice of appeal by Erwin B. Loewenbach was served on the register in probate on March 29, 1932, and on the proponents’ attorneys on April 1, 1932, but no notice was served on the proponents, Herbert Loewenbach and Lucile E. Strauss, personally. Likewise, no application had been made for an order fixing the amount of the undertaking on such an appeal, and no such order had been entered. Because of those omissions and defects in the attempt of the attorneys for Erwin B. Loewen-bach to 'take an appeal on his behalf, an order was entered on May 21, 1932, adjudging that the attempted appeal was void. On May 25, 1932, on an affidavit and application by Erwin B. Loewenbach, the proponents were ordered to show cause why the court should not enter an order which would' permit the applicant to take and perfect an appeal from the judgment admitting the will to probate, and which would
The attempt to appeal on March 29, 1932, failed only because of errors of law in that.there was no proper service on the adverse parties, and no notice had been given of an application for an order, and no order had been made, which fixed the amount of the undertaking for that appeal. Otherwise the appeal would have been timely. That it was undoubtedly being taken in good faith and not for delay is demonstrated by the dispatch, including the procuring of the
“Certainly, it would be difficult to determine what justice requires upon conflicting affidavits. It is not an appropriate way of ascertaining justice.”
It is sufficient if the facts and circumstances, as disclosed by the record and proceedings, are such that the trial court is satisfied that it is in the interests of justice to permit a review of the judicial act on the appeal of an interested aggrieved party who is himself without fault in omitting to perfect his appeal according to law. When that appears to the satisfaction of the court, then within the contemplation
As it was proper to allow the appeal, it was of course also proper to extend the time for serving the bill of exceptions, which it was shown would have been served within the time prescribed by statute but for the pendency of the proceedings that resulted in the adjudication that the first attempt to appeal was ineffectual.
Appellants also contend that the order now under review was erroneous in specifying only $250 as the amount of the undertaking, which was to be furnished on the appeal by Erwin B. Loewenbach, instead of requiring an undertaking for such an amount as would fully indemnify the estate for such consequential damages as it may sustain as a
“However, this general statutory provision is in obvious conflict with sec. 324.04, which relates specifically to appeals from county courts to this court. That requires the filing and serving of an undertaking in such sum and with such surety as the judge shall approve, ‘to the effect that he will diligently prosecute his appeal and pay all damages and costs which may be awarded against him on such appeal.’ This undertaking is to ‘pay all damages and costs,’ and stays all further proceedings in pursuance of the act appealed from. Sec. 324.06, Stats. It was the apparent legislative purpose to make this bond the exclusive bond required upon an appeal from the county court.”
Consequently, the character of the undertaking that Erwin B. Loewenbach was to give is governed by sec. 324.04 (2), Stats., which prescribes that the undertaking which an appellant is to file shall be “in such sum and with such surety as the judge thereof shall approve,” and shall be “to the effect that he will diligently prosecute his appeal and pay all damages and costs which may be awarded against him on such appeal.” Those words “on such appeal” restrict the damages, which are payable by virtue of the undertaking, to such damages as can be awarded “on such appeal” in passing upon the issues then involved. That limitation does not per
“It is not apparent how such damages could be awarded by the supreme court on appeal, any more than it is apparent that such damages might have been awarded in the county court, due to the delay caused by the filing of the objections and the hearing on the same. . . . I do not believe that the law contemplates any such thing as legal damages in cases of this kind. If such losses were ascertainable and assessable, they would not be in the nature of legal damages but in the nature of a penalty imposed on one assuming to exercise the right to object or a right to appeal.” Supposing the judgment of the county court had denied the probate of the will, and the proponents were the appellants, there would be the same*261 delay and the same loss as is here anticipated. In the event the appellants were unsuccessful on the appeal, what recourse would the objector have? It does not seem to me that it is the purpose or intention of the law that appeals are to be allowed at such peril to the appellant.” -.
By virtue of the provision in sec. 324.06, Stats., upon the giving of a notice of appeal at the office of the county judge “all further proceedings in pursuance of the act appealed from shall cease until the appeal shall be determined.” That provision does not make a stay of proceedings dependent upon the filing of an undertaking to cover consequential damages, and as there is no such requirement prescribed by the provisions of sec. 324.04 (2), Stats., which governs the undertaking that is required in this matter, no error was committed in fixing the amount thereof at $250.
By the Court. — Order affirmed.