June 5, 1962 —
June 29, 1962.
APPEAL from an order of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Dismissed.
For the appellant there was a brief by Charles C. Lubcke, collection and deportation counsel, and Clarence J. Simon and James R. Pleyte, assistant counsel, and oral argument by Mr. Simon.
For the respondents there were briefs by Davis, Soquet, Cherney Ross of Green Bay, and oral argument by Colburn G. Cherney.
In 1953 Mary C. LeMere conveyed real estate to her son Gerald subject to a support agreement which required Gerald to furnish Mary with food, clothing, medical, hospital, and nursing expense during her lifetime. Beginning in 1955 Mary was cared for in state and county hospitals. She died in 1958. Gerald paid no part of the cost of hospitalization.
The State Department of Public Welfare filed a claim against Mary's estate for the unpaid cost, and the claim was allowed. The inventory showed no assets. The department brought this action against Gerald seeking adjudication of an equitable lien upon the real estate and sale thereof in order to pay the department's claim. The department relied upon secs. 312.16 and 312.17, Stats., providing for an action by a creditor of a decedent to reach property of a decedent which has not been included in the inventory, but which is liable for his debts.
The circuit court concluded, after trial, for reasons not necessary to relate, that the department could not succeed under the statutes relied upon and had mistaken its remedy, but might, upon a broader inquiry into the facts, be entitled to equitable relief. The court considered that under sec. 269.52, Stats., "Mistaken remedy . . .," the department should be allowed to amend its pleadings and to continue its action.
Accordingly, on November 16, 1961, an order was entered giving the department the option of amending its complaint within thirty days, but directing that if it did not exercise the option, judgment be entered dismissing the complaint. The department has, in form, appealed from this order.
Unfortunately, the parties have gone to the expense of briefing and arguing merits of their case, assuming that the merits are properly before us.
"It is the duty of this court, notwithstanding no issue has been raised by counsel, to take notice of a point which goes to the jurisdiction of this court on appeal and to dismiss the appeal on its own motion, if the order of the trial court is not an appealable order."
The order in question does not fall within any type listed in sec. 274.33, Stats., authorizing appeals from orders. If it be "An order affecting a substantial right," referred to in sub. (1) it does not meet the other requirement of that subsection that it determine the action and prevent a judgment from which an appeal might be taken.
If the department exercised its option to amend, the action would continue and final determination would ultimately be made by judgment (or order). An appeal could then be taken. If the department chose not to amend, the order is simply an order for judgment and the department's remedy is to appeal from the judgment when entered. By the Court. — Appeal dismissed.