Roemer v. Schmidt

KeewtN, J. To warrant this court in reversing the order appealed from it must appear that the court below abused its discretion in denying the appeal. In re O’Hara’s Will, 127 Wis. 258, 106 N. W. 848; In re Box’s Will. 127 Wis. 264, 106 N. W. 1063; McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489; Deering H. Co. v. Johnson, 108 Wis. 275, 84 N. W. 426. Sec. 4035, Stats. (1898), provides: “If any person aggrieved by any act of the county court or commissioners to examine claims shall, from any cause without fault on his part, have omitted to take his appeal according to law, the circuit court of the same county may, if it shall appear that justice requires a revision of the case, on the petition of the party aggrieved and upon such terms and within such time as it shall deem reasonable, allow an appeal to be taken and prosecuted in like manner and with the same effect as though done seasonably.” It is insisted by appellants that sufficient showing was made by the petition to entitle them to an appeal and that the court below abused its discretion in denying it; while on the part of the respondent it is contended that the petition on its face does not show any excuse for the delay and no abuse of discretion, and, further, that it fails to show that justice requires a revision of the case. We do not deem it necessary to consider the point pressed by counsel for respondent to the effect that the appellants have not shown that they are without fault in not perfecting their appeal seasonably, but [5] shall rest our opinion upon the provisions of the statute above referred to, requiring the aggrieved party to show that “justice requires a revision of the case.” We have set out the petition in the statement of facts, and from it it will appear that the attempt to meet this requirement of the statute is in the most general terms and quite barren of any facts tending to show that justice requires a revision of the case. It appears from the petition that the claim was filed in the county court for $502 and allowed at only $245. There are no facts set out in the petition which would enable the court below or this court to determine whether or not justice requires a revision of the case. The only attempt made by petitioners to comply with this requirement' is found in the allegations that the “petitioners are advised, and verily believe, justice requires a revision of this case; . . . that said claim is grossly excessive, and the charges made therein much larger than what they ought of right to he; that said claim so filed does not contain all the credits which said estate is entitled to, and that said claim was improperly allowed by said county court, and should as a matter of right and justice he reviewed upon appeal.” It will he seen that no attempt is made to show how much the excess is claimed to he, or what credits were not allowed which should have been, or any fact going to support the general averment to the effect that the claim was improperly allowed and should he reviewed. There is no affidavit of merits or any facts set forth in the petition or otherwise iron? which the court could determine the nature of the defense, if any, to the claim allowed, the amount of credits claimed, or the merits of such claim. The averments to the effect that the claim is grossly excessive and the charges larger than they should he are merely conclusions of the petitioners, and based upon no facts from which the court could judge whether such conclusions are supported by facts. Uo idea is given as to what amount petitioners would consider “grossly excess [6] ive.” A very trifling sum would satisfy tie allegation, much too small to warrant a court in finding that justice requires a revision of the case. Moreover, the averment that the claim “so filed does not contain all the credits” does not necessarily show that the claim as allowed was not correct, nor that credits other than those appearing in the claim as filed were not allowed. In short, there are no facts set up in the petition going to show, or tending to show, what amount, if any, was included in the claim allowed which should not have been. We think it very clear that upon the showing made there was no abuse of discretion in denying the application for appeal. Marsh v. Briesen, 84 Wis. 618, 54 N. W. 1090; Oakley v. Davidson, 103 Wis. 98, 79 N. W. 27. Our attention is directed by counsel for appellants to the doctrine that where the petition makes a prima facie case the court should grant it without considering counter affidavits as to the justice of the claim. But this doctrine does not go to the extent of permitting the applicant for permission to appeal to make a prima facie case without stating the facts from which the court can see and judge whether or not justice requires a revision of the case. It follows that the order appealed from must he affirmed. By the Court. — Order affirmed.