Mihelcic v. Industrial Roofing & Insulation Co.

216 N.W.2d 245, 63 Wis. 2d 33, 1974 Wisc. LEXIS 1434
CourtWisconsin Supreme Court
DecidedApril 2, 1974
DocketNo. 299
StatusPublished

This text of 216 N.W.2d 245 (Mihelcic v. Industrial Roofing & Insulation Co.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mihelcic v. Industrial Roofing & Insulation Co., 216 N.W.2d 245, 63 Wis. 2d 33, 1974 Wisc. LEXIS 1434 (Wis. 1974).

Opinion

Heffernan, J.

It is argued by the respondent corporation that the appeal came too late, because the personal representative did not appeal from the judgment within the sixty-day limit prescribed by sec. 879.27 (3), Stats., which is applicable to appeals from orders or judgments of the probate court. The record shows, however, that on December 21, 1972, the appellant obtained an order, as provided by sec. 879.31, extending the time for appeal. That statute provides:

“879.31 Extension of time for appeal; retrial. If any person aggrieved by any act of the probate court shall omit to take his appeal within the time allowed without fault on his part, the court may, upon his petition, notice to the adverse party, and hearing, and upon terms and within the time it deems reasonable, but not later than 6 months after the act complained of, by order allow an appeal, if justice appears to require it, with the same effect as though done seasonably; or the court may reopen the case and grant a retrial.”

The trial judge, after a hearing, concluded that the failure to take the appeal within the prescribed sixty days was a result of the negligence of counsel and that a default of this kind by counsel should not result in having an innocent party forfeit the right of appeal. Although [39]*39the statute applicable in Hernke v. Northern Ins. Co. (1963), 19 Wis. 2d 189, 120 N. W. 2d 123, is sec. 269.45, Stats., and does not deal with the extension of time for an appeal from the probate court, the discussion is relevant to the instant case and demonstrates the broad sweep of a trial judge’s discretion to exonerate a party from the consequences of his counsel’s negligent failure to act within a prescribed period.

The trial judge herein carefully weighed the facts and demonstrated a considered exercise of discretion before ordering an extension of time for the appeal.

Under the circumstances, the appeal was timely taken. We stated in the Estate of Steuber (1955), 270 Wis. 426, 431, 71 N. W. 2d 272, that a petition for an extension of time to appeal a matter in probate “is addressed to the discretionary powers of the court whose determination will not be reversed except for an abuse of discretion.”

Although Industrial contends that there was an abuse of trial court discretion, we do not agree. We have repeatedly stated that the statute is to be liberally construed. Even the respondent herein acknowledges that Estate of Trimpey (1950), 257 Wis. 481, 44 N. W. 2d 308, and Will of Loewenbach (1933), 210 Wis. 253, 246 N. W. 332, stand for the proposition that the statute “should be liberally construed and that defaults incurred through negligence of counsel are to be relieved against.” Trimpey, pages 483, 484.

In reviewing a discretionary act of a trial judge, we strive to sustain the decision and will do so if it is apparent that the trial judge exercised his discretion on the basis of relevant consideration of fact and law. There is no evidence that Sylvia Mihelcie exercised anything but good faith in bringing the appeal, and it is evident that she was not aware of the time limit required by the statute. Under these circumstances, it was within the said discretion of the trial judge, relying on cases previously decided by this court, to relieve the innocent party [40]*40of her attorney’s negligence and to permit the appeal. We see no abuse of discretion, and the appeal is timely taken.

The evidence is undisputed that record title was in the corporation at all times. The broker who sold the property did so with the understanding, as evidenced by the instructions for the deed, that the sale was made to the corporation. The record shows that Anton Miheleic was serving the corporation’s purpose in purchasing land it needed for its corporate activities.

For the estate to prevail in this proceeding it must demonstrate that it had title in its own right, and it cannot rely upon infirmities and defects that cast doubt upon the rights of the title holder of record. The rule applicable in quiet title actions is appropriate here. In Brody v. Long (1961), 13 Wis. 2d 288, 292, 293, 108 N. W. 2d 662, this court said:

“In order for the plaintiffs to prevail in this action to quiet title on the merits they must do so upon the strength of their own title and not the weakness of the defendants’ title.”

In Saletri v. Clark (1961), 13 Wis. 2d 325, 331, 108 N. W. 2d 548, this court said:

“When a plaintiff has no title, his complaint in an action to quiet title must be dismissed irrespective of the validity of the title of the defendant.”

The estate attempts to prove title by two transactions. It alleges that there is evidence to show that, at the time the lots were purchased, one half of the property was purchased for Anton’s own use and that by Anton’s subsequent payment in 1958 of $1,500 and the ratification of “all acts ... by the officers” in the corporate resolution of 1959, the remaining half of the property vested in Anton.

Neither of these transactions are probative of any title in Anton Miheleic or his personal representative. It is [41]*41baldly asserted by the personal representative that the two receipts given in 1947 and 1948 which acknowledged that the sums were “Received of A. Mihelcic” give rise to the presumption that the money was his and not the corporation’s. The trial judge made the finding of fact that the transaction did not show the source of the money. This is a finding that must be sustained unless it is contrary to the great weight and clear preponderance of the evidence. There is no evidence to show the source of the money.

The giving of a receipt only evidences that the money was paid by a particular person. It creates no presumption whatsoever in respect to the source of that money. No authority has been cited by the personal representative that would give such effect to the receipts. The independent research of this court has failed to find such authority. A receipt is only probative of the fact that the recipient has received a sum of money and that the money was paid over by the named person. Accordingly, nothing in the transaction dispels the understanding of the parties that the purchase was made for the corporation. The fiduciary relationship of Anton Mihelcic to the corporation can only compel the conclusion that if he was acting lawfully he was acting as the agent for the corporation.

Additionally, the estate argues that, irrespective of Anton’s original authority, the transaction whereby he purported to change the corporate books for the purpose of showing his ownership of the property was ratified by the resolution of the directors and stockholders on March 2, 1959. The record shows, however, that no deed was executed by Anton Mihelcic or any other officer on behalf of the corporation purporting to convey the title to the property. Accordingly, it is urged by the personal representative that the resolution ratified an act that in fact never occurred. Additionally, the resolution adopted was totally ineffective to ratify any act of an officer, [42]*42because the stockholders and directors other than possibly Anton were totally ignorant of the conduct they were ratifying.

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Related

Brody v. Long
108 N.W.2d 662 (Wisconsin Supreme Court, 1961)
Saletri v. Clark
108 N.W.2d 548 (Wisconsin Supreme Court, 1961)
Bratt v. Peterson
143 N.W.2d 538 (Wisconsin Supreme Court, 1966)
Frey v. Geuder, Paeschke & Frey Co.
4 Wis. 2d 257 (Wisconsin Supreme Court, 1958)
Rose v. Schantz
201 N.W.2d 593 (Wisconsin Supreme Court, 1972)
Hernke v. Northern Insurance Co.
120 N.W.2d 123 (Wisconsin Supreme Court, 1963)
Atlas Coal Co. v. Jones
61 N.W.2d 663 (Supreme Court of Iowa, 1953)
Estate of Steuber
71 N.W.2d 272 (Wisconsin Supreme Court, 1955)
Kent v. Sauk Prairie Cemetery Ass'n
44 N.W.2d 308 (Wisconsin Supreme Court, 1950)
Grognet v. Fox Valley Trucking Service
172 N.W.2d 812 (Wisconsin Supreme Court, 1969)
McDermott v. O'Neil Oil Co.
228 N.W. 481 (Wisconsin Supreme Court, 1930)
Loewenbach v. Loewenbach
246 N.W. 332 (Wisconsin Supreme Court, 1933)

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Bluebook (online)
216 N.W.2d 245, 63 Wis. 2d 33, 1974 Wisc. LEXIS 1434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mihelcic-v-industrial-roofing-insulation-co-wis-1974.