Boyce v. Foote

By the Court, Cole, J. It is objected in this case that tbe appeal was not taken within two years from the entry of tbe judgment. Tbe record does not show very distinctly tbe precise time when tbe judgment was rendered. The order for judgment signed by the circuit judge was filed on the 13th of February, 1863, and it is quite apparent from tbe language of that order that tbe judgment bad not been entered before that date. Tbe appeal papers describe tbe judgment as one entered on tbe 13th of February, 1863, and tbe presumption from tbe record undoubtedly is that it was entered at that date. At all events it is a sufficient answer to tbe objection to say that it appears from tbe record that tbe appeal was not barred when taken. Again, it is objected that we cannot consider-the question arising on tbe statute ,of limitations, because there is no bill of exceptions preserving the evidence. But w'e think this question fairly arises upon tbe certified record of tbe county court and tbe finding of tbe circuit court. Of course tbe finding of tbe circuit court is a part of tbe record, and we must look into it, so far at least as to see that tbe facts found support tbe judgment. If the circuit court mistakes tbe principle of law applicable to tbe facts found, tbe error can be reviewed without a bill of exceptions. Blossom v. Ferguson, 13 Wis., 75. And tbe note and tbe amount of it appear in tbe record of the county court, which we must consider. For when an appeal is taken from tbe decision of commissioners or the county court [203] allowing or disallowing a claim against the estate of a deceased person, the statute makes it the duty of the party appealing to procure and file in the circuit court a certified copy of the record of the allowance or disallowance appealed from, which becomes a part of the record of the circuit court. Sections 24 and 25, chap. 101, R. S. Hence it is very clear that no bill of exceptions was necessary to present the question arising on the statute of limitations in this case. The note became due the fourth of June, 1856. The circuit court finds that the deceased, Asa Foote, who was one of the makers, died August 1st, 1861; that administration on his estate was granted October 4th, 1861, and that the note was presented against the estate within less than a year from the granting of the administration. As a matter of law the circuit court held that the note was barred by the statute of limitations when presented to the county court for allowance. It appears from the record of the county court that the note was presented to • that court for allowance on the 1st of August, 1862. There can be no doubt of the right and power of the county court to act upon the note and allow the same, notwithstanding the failure to present it to the commissioners. The matters stated in the petition brought the case fully within the provisions of the statute, sections 7 and 8, chap. 101. And therefore the only point we have to consider is, whether the note was barred by the statute of limitations. There are two provisions of our statute which have a direct bearing upon this question, and which are not entirely harmonious. It will not be necessary, in disposing of this case, to reconcile the apparent conflict in the two sections; for it is evident that an action on the note was not barred, whichever may be held to control. By the last clause of section 30, chap. 138, it is provided that if a person against whom an action may be brought, die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executor [204] or administrator after tbe expiration of that time, and within one year after the issuing of letters testamentary or of administration. By section 8, chap. 147, relating to actions and proceedings by and against executors and administrators, it is provided that the term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited by law for the commencement of actions against his executors or administrators. A construction was given this latter section in Lightfoot v. Cole, 1 Wis., 26, where it was held that in computing the time of limitation within which actions may be brought against an executor or administrator, a period of eighteen months after the death of the testator or intestate is to be excluded from the computation. Assuming, however, that the former provision must govern, then manifestly the period of limitation had not run when the note was presented to the county court for allowance. The maker, Asa Foote, died before the expiration of the time limited for bringing an action upon the note, and the note was presented within one year after the issuing of letters of administration. The presentation of the note to the county court for allowance was unquestionably the commencement of an action, within the meaning of this enactment. It follows from these views that the circuit court erred in holding, upon the facts found, that the note when presented to the county court was barred by the statute of limitations. The judgment of the circuit court is therefore reversed, and a new trial awarded.