#### Maxcy and others, Appellants, vs. Ellison, Administrator, and others, Respondents.

*May 21*

June *20, 1907.*

*Appeal from, county court after time limited: Refusal to allow: Discretion.*

Refusal by the circuit court to allow an. appeal to be taken, from a judgment of the county court after the time limited therefor is *held*in this case not to have been an abuse of discretion, the circuit'court being justified in holding that the petitioners had failed to excuse their neglect to take the appeal in time or to show that justice required a revision of the case.

Appeal from orders of tbe circuit court for Eau Claire county: Jamies O'Neill, Circuit Judge.

*Affirmed.*

It appears from tbe record and is undisputed that July 7, 1902, *A. F. Fllison*was appointed guardian of Thomas Carmichael, a resident of Eau Claire; that October 13, 1902, Thomas Carmichael died intestate, leaving considerable property and as bis sole heir at law *Anne Kenna,*residing at Baile Killian, Edenderry, in Kings county, Ireland; that October 18, 1902, said *Fllison*was appointed special administrator of said estate; that January 6, 1903, said *Fllison*was appointed as regular administrator of said estate; that November 12, 1904, tbe said *Arme Kenna*sold, assigned, transferred, and conveyed all her right, title, and interest in *390said estate to *W. G. Maxcy, D. M. Maxcy,*and *John A. Jar-cobs;*that December 21, 1904, the three persons last named organized and incorporated the Maxcy,, Land Company, and December 24, 1904, they sold, transferred, assigned, and conveyed to said corporation all of said estate so acquired; that January 3, 1905, said administrator filed his final account; that April 29/1905, the county court determined the rights of the respective parties in interest; that August 21, 1905, the final order or judgment in the settlement of said estate was signed by the county judge, and the same was duly recorded in volume B of county court records, on page 333, September 1, 1905.

Upon an application of those claiming under the heir at law, based upon a verified petition, affidavits, and counter affidavits, the circuit court, by order dated December 16, 1905, refused to allow an appeal to the circuit court from said order or judgment of the county court. By order dated December 22, 1905, the circuit court denied the amended petition and application to allow such appeal, without prejudice. •On January 9, 1906, the persons claiming under said heir at law obtained a second order to* show cause why such appeal should not be allowed to be taken, and after the hearing of that order to show cause the circuit court, by final order dated June 30, 1906, and entered July 3, 1906, based upon the petition, affidavits, and counter affidavits, denied said application. Those claiming under said heir at law appeal to this court from each of the three orders dated, respectively, December 16, 1905, December 22, 1905, and June 30, 1906.

*A. W. McLeod,*for the appellants.

W. *F. Bailey,*for the respondents.

Cassodat, C. J.

The statute provides:

> “If any person aggrieved by any act of the county court . . . shall, from any cause without fault on his part, have omitted to take his appeal according to law, the circuit court. *391of tbe same county may, if it shall appear that justice requires a revision of tbe case, on tbe petition of tbe party aggrieved and upon sucb terms and'within sucb time as it shall deem reasonable, allow an appeal to be taken and prosecuted in like manner and with tbe same effect as though done seasonably.” Sec. 4035, Stats. (1898).

This court has repeatedly held that an application to extend tbe time for taking an appeal under this statute is addressed to tbe sound discretion of tbe circuit court, and that the determination of that court'will not be disturbed unless it clearly appears that there has been an abuse of such discretion. *In re O’Hara’s Will,*127 Wis. 258, 106 N. W. 848; *McKenney v. Minahan,*119 Wis. 651, 97 N. W. 489; *Weadock v. Ray,*111 Wis. 489, 87 N. W. 477; *Deering H. Co. v. Johnson,*108 Wis. 275, 84 N. W. 426; *Oakley v. Davidson,*103 Wis. 98, 79 N. W. 27. Have tbe appellants made it appear that there was such abuse of discretion in tbe case at bar ? They claim that they were aggrieved by tbe decision of tbe county court made April 29, 1905, and thereupon directed their attorney, A. W. McLeod/ to appeal from tbe final judgment therein when entered; that said attorney, who resided at Bayfield, was at Ean Claire for five days in tbe early part of July, 1905, and on tbe 21st and 22d days of August, 1905, and.on tbe 2d day of September and tbe 9th day of October, 1905, and on each of said days except October 9, 1905, be made inquiry as to whether final judgment bad been entered therein, but did not examine tbe files therein until November 22, 1905, when be learned that final judgment bad been signed August 21, 1905, and recorded September 1, 1905, as mentioned. Tbe counter affidavits on tbe part of tbe administrator are voluminous, giving the history of tbe matter in detail, with some correspondence between tbe attorneys, and much of it in direct conflict with statements made in behalf of tbe appellants. Tbe trial court indulged tbe appellants in repeated applications and bearings, and seems to have *392been, justified in bolding tbat tbe petitioners bad failed to ex-: cuse tbeir negleet to take tbe appeal in time or to sbow tbat justice -required a revision of tbe case. Certainly we would not be justified in bolding tbat there was an abuse of discretion in making any of tbe orders appealed from.

*By the Court.*— Tbe several orders of tbe circuit court áre eacb and all affirmed.