Burden v. Blakey

Cassoday, C. J. 1. The notice of appeal to the circuit court from the order, judgment, and determination of the-county court made November 17, 1903, admitting,the will to-probate and issuing letters testamentary thereon to Dale, was filed with the county court on or about January 11, 1904,. and hence within sixty days after the rendition of such judgment, as prescribed in the statute. Sec. 4031, Stats. 1898. That section declares that such appeal may be taken by filing-such notice within sixty days, “together with such undertaking as is required in the next section.” Sec. 4032, Stats. 1898. In this case an undertaking was filed January 12,1904, which the county judge refused to approve on the grounds stated,. [270] and another undertaking was filed January 18, 1904,. a few days after the expiration of the sixty days, which the judge ■also refused to approve. But this court has recently “held that, where a notice of appeal under such section was filed in time, the fact that the undertaking was not filed with the notice was not a fatal defect though it was not filed within the time limited for taking the appeal.” Charmley v. Charmley, 125 Wis. 297, 103 N. W. 1106. It is evident from the facts mentioned in the. foregoing statement that the undertaking of January 18, 1904, tendered to the county court to perfect said appeal, should have been accepted and approved by the county court. Failing to do so, the circuit court should, on February 4, 1904, have granted the prayer contained in the petition of the appellants, verified January 22, 1904, and allowed such appeal from said judgment of November 17, 1903, “upon such terms and within such time” as that court deemed to be reasonable, as mentioned in the statement. It follows from what has been said that the order of the circuit court denying such application twenty-one months after it was made was an abuse of discretion. 2. The important question in the case is whether the county court of Racine -county had jurisdiction to make the judgment and order complained of. Of course, the courts of this ■state were required to give full faith and credit to the records and judicial proceedings in the probate court of Cook county in the state of Illinois. But in order to entitle such records ■or proceedings to such faith and credit it must appear, in the manner prescribed by law, that the court rendering the same 'had jurisdiction. Board of Public Works v. Columbia, College, 17 Wall. 521; Thompson v. Whitman, 18 Wall. 457; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407; Overby v. Gordon, 177 U. S. 214, 223, 20 Sup. Ct. 603; Frame v. Thormann, 102 Wis. 653, 670, 79 N. W. 39; Wells, Fargo & Co. v. Walsh, 88 Wis. 534, 60 N. W. 824; McIntosh v. Marathon [271] L. Co. 110 Wis. 296, 303, 304, 85 N. W. 976. Some of these •cases are quite similar in their facts. Our statutes provide that a “will duly admitted to probate” in another “state and in the place of the testator’s domicile may be admitted to probate and recorded in this state by duly filing -an exemplified copy of said will and of the record admitting the same to probate.” Sec. 3789, Stats. 1898. And that “when a copy of any such will and the probate thereof, duly authenticated, shall be produced by the executor or other person interested therein to the county court, such court shall appoint a time and place of hearing, and cause notice thereof to be given as required by sec. 3787. If on the hearing it shall appear to the court that the order or decree admitting such will to probate was made by a court of competent jurisdiction and is still in force, the copy and the probate thereof shall be filed and recorded, and the will shall have the same force and effect as if it had been originally proved and allowed in the same court.” Sec. 3790, Stats. 1898. Besides, the statute declares: “The records and judicial proceedings of any court of the United States or of any state or territory or district thereof shall be admissible in evidence in all cases in this state when authenticated in' the manner directed in sec. 4140, by the attestation of the clerk, prothonotary, or Other officer having charge of the records of such court, with the seal of the court annexed.” Sec. 4145, Stats. 1898. The section therein mentioned declares, in effect, that any copy of “the original records, papers and files in or concerning any action or proceeding of any nature or description in any court, being certified by the clerk, judge or justice having legal custody of the original, to have been by him compared with the original and to be a true copy thereof, such certificate having affixed the seal of the court or of such officer, if any be required by law to be kept, shall be received with like effect as the original.” Sec. 4140, Stats. 1898. In the case at bar 'no such certificate was affixed. There is a certificate by the [272] clerk tbat a paper in tbe record is a true copy of tbe will, but there is nothing in tbe record indicating tbat tbe same bad “been by him compared with tbe original.” Nor is there anything in tbe record indicating tbat tbe “judicial proceedings” in tbe probate court of Cook county bad ever been “authenticated” or attested in tbe manner thus prescribed. Tbe statute quoted required as a condition precedent to admitting such will to probate, not only tbe “filing” of “an exemplified copy of said will,” but also “an exemplified copy ... of tbe record admitting tbe same to probate.” Sec. 3789, Stats. 1898. So tbe statute only allowed such foreign will to be admitted to probate in case it should be made to “appear to tbe court tbat tbe order or decree admitting such ■will to probate was made by a court of competent jurisdiction.” Sec. 3790, Stats. 1898. In view of tbe several provisions of tbe statutes cited, such “exemplified copy” clearly means a duplicate or transcript of tbe records or proceedings in tbe probate court of Cook county admitting such will to probate, “duly authenticated” under tbe seal of tbat court and duly certified to by tbe custodian of such records and proceedings. So far as appears from tbe record before us, there was a failure to comply with such requirements of tbe statutes. Tbe same is true as to tbe mode of authentication and proof of tbe records and judicial proceedings of tbe courts of tbe several states, as prescribed by tbe statutes of tbe United States, from which some of tbe sections of our statutes were taken. See. 905, R. S. of U. S. [U. S. Comp. St. 1901, p. 677]. By the Court. — Tbe order of tbe circuit court refusing the application made February 4, 1904, to allow an appeal from tbe order, judgment, and determination of tbe county court made in said matter November 17, 1903, is hereby reversed, and tbe cause is remanded for further proceeding in tbat regard according to law. And tbe order and judgment of tbe circuit court entered December 10, 1904, affirming tbe order [273] and judgment of the county court of April 12, 1904, is reversed, and tbe cause is remanded for further proceedings according to law.