Opinion
November 3, 1966. —
November 29, 1966.
APPEAL from an order of the county court of Dodge county: JOSEPH E. SCHULTZ, Judge. Dismissed.
For the appellant there were briefs by Lueck Skupniewitz of Beaver Dam, and oral argument by A. W. Lueck.
For the respondent there was a brief by Bruce R. Rasmussen of Beaver Dam, attorney, and Williams, Williams Meyer and Thomas S. Williams, all of Oshkosh, of counsel, and oral argument by Thomas S. Williams.
This appeal is from an order granting the petition of Arthur Keske for the appointment of a special administrator of the estate of Oscar Keske.
During his lifetime, the decedent, Oscar Keske, purchased a variety of coupon bonds, payable to bearer, from the B. C. Ziegler Company. With each purchase, Oscar Keske requested that the sales memorandum show purchase by "Oscar Keske or" one other named person. Certain of the sales memoranda show a purchase by "Oscar Keske or Arthur Keske," while certain others show a purchase by "Oscar Keske or Myrtle Kastenmeier."
Both Myrtle Kastenmeier and Arthur Keske were legatees under the will of their brother, Oscar Keske. Myrtle Kastenmeier was named executrix of the estate. As executrix, she inventoried the bonds in question as solely owned property of Oscar Keske, and they were treated as solely owned property in the final account and judgment. Arthur Keske apparently did not become aware that two names appeared on the sales memoranda until after entry of the final judgment.
Final judgment in the Keske estate was entered on October 30, 1964. However, on November 16, 1965, Arthur Keske filed a petition alleging that some of the bonds were not owned by the decedent solely but rather were owned jointly and asking that a special administrator be appointed for the purpose of obtaining possession of the securities and delivering them to the surviving joint owner.
After a hearing on the petition, the county judge in a memorandum decision dated February 25, 1966, stated that the words "Oscar Keske or Arthur Keske" created a tenancy in common, that the executrix committed a fraud on the court by failing to bring this language on the invoices to the attention of the court, that the petition to appoint a special administrator should be granted, and that the judgment should be reopened. In its order, the county court granted the petition for the appointment of a special administrator and appointed John Gitzinger, Jr., as special administrator. However, the order did not direct that the special administrator was to receive any particular assets, nor did it designate how the various bonds were to be distributed. The court's order provided as follows:
"It is ordered that the petition for the appointment of a special administrator is granted and that John Gitzinger, Jr., Iron Ridge, be and he hereby is appointed as special administrator of the estate of said decedent for the purposes herein mentioned, and that upon the filing and approval of a bond as required by law in the sum of Ten Thousand ($10,000.00) Dollars Letters of Special Administration be issued to him."
Statutes Involved.
"274.33 Appealable orders. The following orders when made by the court may be appealed to the supreme court:
". . .
"(2) A final order affecting a substantial right made in special proceedings, without regard to whether the proceedings involve new or old rights, remedies or proceedings and whether or not the right to appeal is given by the statute which created the right, remedy or proceedings, or made upon a summary application in an action after judgment."
"311.06 Special administrator. Whenever it shall appear by petition to the county court of any county that a resident of the county has died or that a person not resident of this state has died leaving estate to be administered in such county a special administrator may be appointed where one or more of the following circumstances are shown to exist:
". . .
"(2) That the final judgment in the estate has been rendered and an act remains unperformed in said estate, or that unadministered assets have come to said estate or have been found or may be found belonging to it."
"324.01 Appeals from county court. Any person aggrieved by any order or judgment of the county court may appeal therefrom to the supreme court, and the provisions of chapter 274 shall apply."
The order which is before us is not an appealable one, and therefore this appeal must be dismissed. Even though this issue was not raised by the parties, it is our responsibility to examine the question of appealability on our own motion. Dombrowski v. Tomasino (1964), 24 Wis.2d 16, 127 N.W.2d 786; Lentz v. Northwestern National Casualty Co. (1963), 19 Wis.2d 569, 120 N.W.2d 722; Yaeger v. Fenske (1962), 15 Wis.2d 572, 113 N.W.2d 411.
The order appealed from in this case provides for the appointment of a special administrator and fixes the bond, apparently pursuant to secs. 311.06(2) and 311.08, Stats. Such an order is not a "final order" within a special proceedings under sec. 274.33(2), and therefore it is not appealable.
Sec. 324.01, Stats., provides that ch. 274 shall apply to appeals from orders or judgments of a county court. This court has ruled that the provisions of sec. 274.33 govern appeals from orders of a county court in probate matters. Will of Krause (1942), 240 Wis. 68, 2 N.W.2d 732. While interim orders in the course of a probate proceedings may qualify as final orders, as demonstrated by Estate of Bosse (1944), 246 Wis. 252, 16 N.W.2d 832, this cannot be said of the order in the case at bar.
The test for determining whether an order is a "final order" was asserted by this court in Herman Andrae Electrical Co. v. Packard Plaza (1962), 16 Wis.2d 44, 48, 113 N.W.2d 567:
". . . the test to determine whether an order is a `final order' is its effect on the rights of the parties. If an order closes the matter and precludes further hearing and investigation it is final; but an order which does not completely dispose of the subject matter and settle the rights of the parties is not final."
See also Willing v. Porter (1954), 266 Wis. 428, 63 N.W.2d 729; A. J. Straus Paying Agency v. Caswell Building Co. (1938), 227 Wis. 353, 277 N.W. 648.
In Kingston v. Kingston (1905), 124 Wis. 263, 264, 102 N.W. 577, where the trial court entered an order appointing a referee, this court discussed the appealability of such order and stated that a final order
". . . is one which determines and disposes finally of the proceeding — one which, so long as it stands, precludes any further steps therein. . . . It . . . leaves for investigation and for determination by some subsequent order all of the merits presented by the application. It is clearly intermediate, and not final. Hence we must conclude that it is not within the description of those orders which are rendered appealable by the above-cited section of the statutes."
In dismissing this appeal, we express no view as to the correctness of the trial judge's comments set forth in his memorandum opinion, and such opinion is not to be treated as the law of this case. Our present ruling is based on the court's formal order, from which this abortive appeal was taken, and not on the judge's opinion which preceded such order.
By the Court. — Appeal dismissed.