Opinion
November 4, 1941 —
December 2, 1941.
APPEAL from an order of the county court of Marinette county: WILLIAM F. HAASE, Judge. Affirmed.
For the appellant there were briefs by Lehner Lehner, Adolph P. Lehner, and Howard Eslien, all of Oconto Falls, and oral argument by Adolph P. Lehner.
Emmet McCarthy of Marinette, for the respondent.
In probate proceedings in the administration of the estate of Henry Von Nobel, deceased, an order limited the time in which claims might be filed to July 19, 1938. On July 1, 1938, Ruth Ebenreiter filed a claim for $932.75, the contract price of personal property sold to Von Nobel under six conditional sales contracts in which she was the vendor. On September 30, 1938, the claim was allowed at $932.75, and that amount was included in the judgment entered on November 13, 1940, on all claims allowed. On April 30, 1941, Ruth Ebenreiter filed a petition alleging the facts stated in the case of Ebenreiter v. Woulf, ante, p. 228, 1 N.W.2d 73, in relation to the conversion by Woulf of some of the personal property which she had sold to Von Nobel under the conditional sales contracts, and the amounts received by Woulf on the sales of some of the property as administrator; that the circuit court had entered judgment dismissing her complaint in the action for conversion; and that Von Nobel's estate has not sufficient funds to pay administration expenses and claims. Upon this petition the administrator was ordered to show cause why the judgment allowing petitioner's claim should not be amended by providing that it is a preferred claim against the money received for the property pledged as security; why such money should not be earmarked as belonging to her and used solely to pay her claim; and why the administrator should not be directed to pay such money forthwith to her. Upon a hearing pursuant to the order to show cause, the court entered an order denying petitioner's motion. She appealed from that order.
On this appeal the appellant, Ruth Ebenreiter, contends that she has an equitable lien on $747.30 received by Arthur Woulf, as administrator, on the sale of certain items of property purchased by Henry Von Nobel, deceased, under conditional sales contracts made between him and appellant; that this lien stands in place of her security; and that therefore the county court erred in denying her petition to amend the judgment entered November 13, 1940, allowing her claim in full as an unsecured claim, by now providing that her claim is a preferred claim against money received by the administrator for the property pledged as security.
In the petition filed by appellant on April 30, 1941, upon which she bases her motion for the amendment of the judgment, there is no allegation whatever as to any mistake, fraud, or other circumstance which might be considered to afford an excuse for her delay in seeking relief by the amendment of the judgment. The petition was not filed until thirty-three months after the time for filing claims expired on July 19, 1938, thirty-one months after her claim was proven and allowed, and five months after judgment was entered on all claims allowed. Consequently, when appellant petitioned for additional relief by an amendment of the judgment, all claims against the estate had become barred under sec. 313.08, Stats., for many months, excepting in so far as they had been filed by July 1, 1938, which was the time limited by an order duly entered for that purpose. Under the rule barring claims not filed within the time so limited, claims duly filed within that time cannot be amended after the expiration of such time so as to increase the amount or nature of the relief or materially change the basis therefor. Estate of White, 223 Wis. 270, 270 N.W. 34; Estate of Leu, 172 Wis. 530, 179 N.W. 796. Moreover to justify the amendment or setting aside of a judgment or order in probate proceedings there must be a proper showing of some fraud or mistake. Estate of Penney, 225 Wis. 455, 473, 274 N.W. 247. At all events, as there is no such showing or even any showing of excusable neglect or inadvertence, we cannot conclude that there was any abuse of discretion on the part of the court in denying appellant's motion to amend the judgment.
By the Court. — Order affirmed.