Perkins v. Shadbolt

LyoN, J. I. The first question for consideration is, whether any valid appeal was taken to the circuit court from the order of the county court of December 29, 1876. The appeal was attempted to be taken under the provisions of sections 24,25 and 26, ch. 117, R. S. 1858. We think there was a substantial compliance with the provisions of sections 24 and 25. The reasons for the appeal seem to have been sufficiently stated in the notice of the appeal; and we think the bond, which is executed in terms “ to the creditors of the estate of Martin Perkins, deceased,” is sufficient. True, the penalty of the bond was not fixed, nor was the bond formally approved by the county judge, until after the expiration of the sixty days of the statute; but we are of the opinion that those circumstances do not invalidate the appeal. When those provisions were complied with, the appeal was perfected so as to give the circuit court jurisdiction of the subject matter — that is, of the order appealed from. Such an appeal is unlike an appeal to this court, wherein due service of notice of appeal is a part of the appeal process, and therefore jurisdictional. Tay. Stats., 1632, § 3; Yates v. Shepardson, 37 Wis., 315. The same process gives this court jurisdic [579] tion both of tlie subject matter and the person. But in appeals from the probate court, another and an independent proceeding is necessary to give the circuit court jurisdiction of the person of the adverse party. That proceeding is prescribed in section 26. In this case the creditors of the estate are adverse parties to the appeal. Perhaps the heirs are also. The record fails to show whether the notice of appeal was personally served on any of those parties. Indeed it does not show who are such creditors or heirs. The record only shows that such notice was served on the attorney of the appellants in this court, or of some of them. The order of the county court in that behalf required personal service of the notice of appeal on the adverse parties. Service on their attorney alone is not a compliance with that order, and would not give the court jurisdiction of them. But this court has often held that a full appearance is a waiver of all defects in the' service of process, and gives the court jurisdiction of the party making such appearance. All of the appellants here appeared generally in the circuit court, and submitted a motion that the order of the county court of December 29th be affirmed. On the principles above stated, that was an appearance which operated as a waiver of defects in the service of the notice of appeal. ¥e conclude that, by virtue of the appeal and subsequent proceedings, the circuit court obtained jurisdiction of the subject matter of the order appealed from, and of the present appellants, and as to such appellants may lawfully hear, try and determine such appeal on the merits. II. No trial of the merits was had in the circuit court, but that court reversed the order appealed from, on motion. The learned circuit judge must have held that the order shows on its face that it was improperly made. It was stated in the argument in this court, that the order was reversed because it appears by a recital in it that a large amount of debts due the estate was uncollected when it was made; the circuit judge [580] being of the opinion that ch. 73, Laws of 1873, prohibits the making of the order until such debts are all collected. No other ground for the reversal of the order has been suggested. It seems to us that the order does not necessarily contravene any of the provisions of ch. 73 of 1873. Upon granting letters testamentary or of administration, the statute (R. S. 1858, ch. 101, sec. 32) requires the county court to make an order allowing the executor or administrator time, not exceeding in the first instance eighteen months, for disposing of the estate and paying debts and legacies; which time may afterwards be extended by the court pursuant to sections 33 and 31. Upon the appointment of commissioners to adjust claims against the estate of a deceased person, the county court is also required to fix a time within which such claims must be presented. The time so fixed may also be extended a limited time in a proper case. R. S. 1858, ch. 101, secs. 5 and 7, amended by ch. 73, Laws of 1873, secs. 1 and 2. Section 37 of ch. 101 provides, that “ if, after the report of the commissioners, and ascertaining the claims against any estate, it shall appear that the executor or administrator has in his possession sufficient to pay all the debts, he shall pay the same in full within the time limited or appointed for that purpose.” Section 40 gives the court power to order distribution of the assets of the estate among creditors, as the circumstances of the estate shall require, at or before the expiration of the time limited for the payment of debts. Section 9 of ch. 102 gives the court plenary power to compel the executor or administrator to render accounts, both interlocutory and final. None of these provisions of the revised statutes ¿re repealed, and none of the powers therein conferred are abridged, by ch. 73 of 1873. Sections 3 and 4 of that act merely make it the duty of the county court, in a proper case, to require the executor or administrator to proceed to a final settlement of the estate, and to pay the debts chargeable against it, before the expiration of the time limited therefor by former orders; [581] but it does not interfere witb tbe power of the court to do so after the time so limited lias expired. The object of the statute is to hasten, not to retard, the settlement of estates of deceased persons. If it shall be made to appear that the time finally fixed by the county court for presenting claims and for disposing of the estate and paying debts, has expired, and that there are sufficient assets in the hands of the administrator, properly applicable thereto, to pay the debts chargeable against the estate, no good reason is perceived why the order of December 29, 1876, should not be affirmed. These facts are neither established nor negatived by the record before us. The question of their existence is the issue to be determined in the circuit court on the trial of the appeal from the order of the county court; and upon the determination of that issue the order must stand or fall. III. It is claimed on behalf of the appellants, that an account against the estate was allowed by the commissioners in favor of the judge of the circuit court in which the appeal was pending; and on the hearing of the motion in that court to reverse the order of the county court, the objection was made that such judge was disqualified to hear it. But the judge certified, in substance, that he was not a creditor of the estate and claimed no interest in it, and overruled the objection. We think he ruled correctly. 'The commissioners could not disqualify him by putting his name in the list of creditors, when he was not in fact a creditor and claimed no interest in the estate. By the Oourt. — The judgment of the circuit court, reversing the order of the county court, is reversed, and the cause remanded for further proceedings according to law. ByaN, O. J., took no part.