Maxcy v. Ellison

Cassodat, C. J. The statute provides: “If any person aggrieved by any act of the county court . . . shall, from any cause without fault on his part, have omitted to take his appeal according to law, the circuit court. [391] of tbe same county may, if it shall appear that justice requires a revision of tbe case, on tbe petition of tbe party aggrieved and upon sucb terms and'within sucb time as it shall deem reasonable, allow an appeal to be taken and prosecuted in like manner and with tbe same effect as though done seasonably.” Sec. 4035, Stats. (1898). This court has repeatedly held that an application to extend tbe time for taking an appeal under this statute is addressed to tbe sound discretion of tbe circuit court, and that the determination of that court'will not be disturbed unless it clearly appears that there has been an abuse of such discretion. In re O’Hara’s Will, 127 Wis. 258, 106 N. W. 848; McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489; Weadock v. Ray, 111 Wis. 489, 87 N. W. 477; Deering H. Co. v. Johnson, 108 Wis. 275, 84 N. W. 426; Oakley v. Davidson, 103 Wis. 98, 79 N. W. 27. Have tbe appellants made it appear that there was such abuse of discretion in tbe case at bar ? They claim that they were aggrieved by tbe decision of tbe county court made April 29, 1905, and thereupon directed their attorney, A. W. McLeod/ to appeal from tbe final judgment therein when entered; that said attorney, who resided at Bayfield, was at Ean Claire for five days in tbe early part of July, 1905, and on tbe 21st and 22d days of August, 1905, and.on tbe 2d day of September and tbe 9th day of October, 1905, and on each of said days except October 9, 1905, be made inquiry as to whether final judgment bad been entered therein, but did not examine tbe files therein until November 22, 1905, when be learned that final judgment bad been signed August 21, 1905, and recorded September 1, 1905, as mentioned. Tbe counter affidavits on tbe part of tbe administrator are voluminous, giving the history of tbe matter in detail, with some correspondence between tbe attorneys, and much of it in direct conflict with statements made in behalf of tbe appellants. Tbe trial court indulged tbe appellants in repeated applications and bearings, and seems to have [392] been, justified in bolding tbat tbe petitioners bad failed to ex-: cuse tbeir negleet to take tbe appeal in time or to sbow tbat justice -required a revision of tbe case. Certainly we would not be justified in bolding tbat there was an abuse of discretion in making any of tbe orders appealed from. By the Court. — Tbe several orders of tbe circuit court áre eacb and all affirmed.