48 Wis. 307 | Wis. | 1880
The plaintiff, as creditor of the estate of Ambrose Oschwald, presented a claim to the commissioners appointed under the statute to examine and adjust all demands against the deceased, for money which he had let the deceased have, and also for work and labor which he had rendered the deceased. The commissioners allowed the plaintiff $1,028 for money which he had loaned the deceased, and wholly disallowed the claim for work and labor. The administrator appealed from the decision of the commissioners allowing the money claim. The plaintiff took no appeal from their decision disallowing his other claim, for services. The cause proceeded to a hearing in the circuit court upon the issues therein
It seems to us the circuit court was wrong in assuming, as it seems to have done, that the disallowed claim of the plaintiff was removed to that, court by the appeal of the administrator, and in considering that claim at all. The claims of the plaintiff presented to the commissioners were wholly distinct and independent in their nature, in no sense forming'one contract. One might properly be considered, allowed or disallowed in part or in whole, without reference to the other claim. If, for instance, the commissioners had allowed less on the money demand than the plaintiff claimed was due him, perhaps an appeal by the administrator from what was allowed would bring to the consideration of the circuit court the merits of that entire demand, so that the allowance of the commissioners could be increased if the testimony showed that it ought to be. But we do not see upon what principle it could be claimed that the appeal which was taken had the effect to -bring up a totally separate and distinct claim, which had been disallowed, and from which disallowance no appeal had been taken.
The statute gives a creditor the right to appeal from the decision and report of the commissioners to the circuit court of the same county, if application for such appeal is made in writing, and filed in the office of the county judge within sixty days after the return of the report, upon executing a bond to the adverse party, with sufficient sureties, to be ap
To assume or suppose that, by the appeal of an administrator or executor from the decision allowing some items of the claim or account, the disallowed items were removed to the circuit court for review and examination, is an inference unwarranted by the statute.. Here the administrator did not object to the decision of the commissioners disallowing the claim for labor and services, but acquiesced in it. There never was an appeal from such disallowance taken by any one; and it therefore was not before the circuit court for examination. Consequently, holding as we do that the plaintiff’s
By the Court. — Tbe judgment of tbe circuit court is affirmed.