Oberle v. Wilke

Wiest, J.

Donus Oberle filed in the probate court a claim against the estate of his deceased father for one-half of crops sold from farm during the seasons 1930,1931 and 1932, amounting to $1,050. The claim was disallowed and an appeal taken by claimant to the circuit court.

In the record of proceedings, certified by the probate court, there appeared an amended claim of plaintiff for compensation for services in “making” the mentioned crops. In the circuit court the attorney for contestants of plaintiff’s claim moved to strike the amended claim from the certified record on the ground that it was not filed in the probate court or submitted at the hearing on plaintiff’s claim. The court took evidence on such issues and struck the amended claim from the certified record of the proceedings appealed from. The court was in error. The duly certified record could not be so excised by the circuit court. If the circuit court had any power in the premises it was limited to remand to the probate court for recertification. With the amended claim so stricken plaintiff’s attorney moved to amend in the circuit court. This was refused. Under the certified record no amendment in the circuit court was necessary.

Upon such refusal plaintiff asked leave to submit to a “nonsuit,” without prejudice to a retrial of his claim in the probate court. Upon appeal from the probate court plaintiff could not submit to a nonsuit, with reservation of right to relitigate in the probate court. Upon denial of leave to amend and the refusal of plaintiff to proceed on his original claim the appeal was dismissed.

This appeal does not bring before us the question of whether the first claim prevents recovery on a quantum meruit.

The judgment is reversed and the appeal reinstated, with costs to plaintiff.

North, C. J., and Fead, Btttzel, Bushnell, Sharpe and Tot, JJ., concurred. Potter, J., did not sit.