Powers v. Powers

145 Wis. 671 | Wis. | 1911

ViNJE, J.

At the threshold of the case we are met with the contention of the respondents that the appellant has no appealable interest and therefore her appeal to the circuit court should have been dismissed, as should be the appeal to this court. The grounds upon which such contention is based are that the right of appeal is governed by sec. 4031, Stats. (1898), as amended by ch. 593, Laws of 1907, providing that “any executor, administrator, guardian, trustee or any person aggrieved by any order, judgment, decree, determination or denial of the county court may appeal therefrom to the circuit court;” that since she has not only not been appointed executrix, but tbe will bas not been admitted to probate, she cannot appeal as executrix, and as she is not an heir or legatee she is not a person aggrieved by the judgment sought to be appealed from. That she cannot appeal as executrix must be conceded, for upon the record as it stands she has not been appointed such, the proposed will has been refused probate, and the trial court found that it could not be determined with reasonable certainty that any one was named as executrix in the will. It therefore remains to consider whether or not she is a person aggrieved by the judgment within the meaning of the statute cited, as that has been held to be exclusive on the question as to who may appeal from the county court to the circuit court. In re Guardianship of McLaughlin, 101 Wis. 672, 78 N. W. 144; Sanborn v. Carpenter, 140 Wis. 572, 123 N. W. 144. It has likewise been held that the right of appeal, irrespective of statute, is not in every party to a judgment, but is confined to parties aggrieved in some appreciable manner thereby. Larson v. Oisefos, 118 Wis. 368, 95 N. W. 399. And if the appellant cannot show his right to prosecute the appeal by statutory provisions or by the fact that he is aggrieved by the decision involved, the proper practice is to dismiss the appeal. Amory v. Amory, 26 Wis. 152; Larson v. Oisefos, supra. It is not necessary in this case to determine whether or not one actually named as executor in a will that is refused probate is a person “aggrieved” within the meaning of the statute and entitled to an appeal. Here the appellant has failed to show that she was named as executrix, and the only ground upon which she bases her right to appeal is the fact that she claims she was so named. Such a claim does not bring her within the statute. It does not appear from the record that she is now anything more than a stranger to the proceedings, or that any legal right of hers has been adversely affected by the judgment. The mere fact that she may have a strong natural desire to reverse it. or that she has been affronted or injured in her feelings by tbe rendition thereof, is not sufficient. Sanborn v. Carpenter, 140 Wis. 572, 123 N. W. 144. Nor does tbe fact that she could properly arouse tbe jurisdiction of tbe county court in tbe first instance entitle her to appeal. Ibid,. Tbe appeal must therefore be dismissed on tbe ground that the appellant has no appealable interest.

By the Court. — Appeal dismissed, and cause remanded with directions to dismiss tbe appeal from tbe county court.