Behrens v. Maerzke

Eschweiler, J. The petition for relief was filed and action taken thereupon by the court’s order fixing the time for- a hearing thereof on November 6, 1922, and therefore within the period of one year after the entry of the order and judgment of. November 7, 1921, sought to be vacated or modified. Under sec. 4035, Stats., the court could then, or thereafter upon later hearing, have permitted an appeal from the judgment of November 7, 1921, or, in its discretion, reopened the case and granted a retrial. This statute does not require that the petition shall be heard and finally determined within the year because of the express provision therein found requiring only that “the petition therefor shall be filed in the office of the clerk of the county court within one year after the act complained of.” [24] Appellants contend that the county court was foreclosed from making the order for rehearing that it did because such order was not made within ■ the year subsequent, to November 7, 1921, and therefore not within the jurisdictional period fixed in sec. 2832, Stats., for the granting of such relief. This is so claimed in spite of the uncontradicted allegation in the petition that the petitioners had no knowledge of the entry of such order and judgment allowing claims until September, 1922, by reason of the fact that one of said petitioners, having had his claim allowed at the same time with the others, was conclusively presumed to know of the allowance of these claims. The rule is. well established by cited decisions of this court that under this particular statute not only must the petition for relief be presented, but it must be heard and acted upon within the said year. There was, however, here no violation of such rule because, even were the one petitioner held conclusively presumed to know of the allowance of the other claims, that could not and does not bar the right of the others who did not have notice of the entry of the order until the September following. The trial court reached the conclusion, as expressed in his written decision, that if his attention had been called to the real situation the two claims involved would not have been allowed without a hearing; that being so, he might well have made-such an order of his own motion by virtue of the power inherent in the county court to correct, while the proceedings are still. before them, such erroneous results as were here reached. Scheer v. Ulrich, 133 Wis. 311, 113 N. W. 661; Estate of Staab, 166 Wis. 587, 592, 166 N. W. 326; Guardianship of Reeve, 176 Wis. 579, 591, 186 N. W. 736. The question whether the relief asked for- should be granted was one resting in the. judicial discretion of the court, and upon the showing here made such discretion was well and properly exercised. [25] Although the executor has not joined in the appeal, and so perhaps the objection interposed by him in the court below on the ground that he had paid these claims in December, 1921, pursuant to the order of the preceding month, is not before us, yet, inasmuch as the point is perhaps preserved by the claimants’ exceptions to the order of the court below and is discussed in their brief, we shall dispose of it. The order and judgment of November 7, 1921, was pursuant to sec. 3842, Stats., and such allowance of the claims became a judgment as to the amounts and validity thereof. Jameson v. Barber, 56 Wis. 630, 633, 14 N. W. 859. Such order and judgment, however, neither by its own terms nor by the section of the statute just cited, provided for, authorized, or allowed the executor to pay the same. By secs. 3852 to 3856, Stats., inclusive, provision is made for the procedure subsequent h> such allowance of claims for their proper and timely payment. It is only upon and pursuant to the order under sec. 3856, Stats., directing the executor or administrator to pay the debts, that his individual responsibility and that of his bondsmen becomes fixed and determined rather than under sec. 3842, supra, as contended for by appellants. Roberts v. Weadock, 98 Wis. 400, 404, 74 N. W. 93; Kellogg v. Stroud, 166 Wis. 12, 17, 163 N. W. 261. By the Court. — Order affirmed.