Weadock v. Ray

Winslow, J. This court having, for what seem to us good and sufficient reasons, affirmed the judgment in the case of Roberts v. Weadock, ante, p. 488, thus finally determining the liability of the executor to pay Mr. Ray’s claim, it is difficult to see how any good purpose can be subserved by a reversal of the order here appealed from. The reversal, if made, would be absolutely barren of results beneficial to the executor. But there does not appear to be any valid ground upon which a reversal of the order before us could be based. The findings of fact made by the trial court are amply sustained by the evidence, and upon those findings it is perfectly evident that the order of August 7th, requiring the executor to pay the respondent’s claim, was properly made. Indeed, that question was nearly, if not quite, settled adversely to the appellant in the decision of this court upon the first appeal. Furthermore, as pointed out in the opinion upon that appeal, the appellant, with full knowledge of all material facts, had ample opportunity to prosecute an appeal directly from that order under secs. 4031, 4035, R. S. 1878, and neg493 lectéd to do so; so that his present unfortunate predicament is to be attributed to his own neglect to’avail himself of- the remedies which the law affords. It is entirely true that under proper circumstances the county court may set aside an order previously made, which was induced by fraud or mistake, and which ought not to have been made, and this even though the time for appeal from the order may have long since expired. Estate of Leavens, 65 Wis. 440; Estate of O'Neill, 90 Wis. 480; Hall v. Hall, 98 Wis. 193. But such an application is an application to the equity power of the court, and it will be denied if the facts show laches on the part of the applicant. Thomas v. Thomas, 88 Wis. 88; Case of Broderick's Will, 21 Wall. 503. That the appellant was guilty of laches in the present case cannot be questioned. In fact it was so held upon the first appeal. By the Court.— Judgment affirmed.