SUPREME COURT OF WISCONSIN.

JASON DOWNER, Administrator, etc., Appellant, vs. JAMES C. HOWARD, Respondent.

Filed November 6, 1879.

After the lapse of more than sixty days from the making of an order by a county court allowing an account against an intestate's estate, a petition was filed by A. for leave to appeal from the order, stating facts to explain the delay, and also stating that A. was the sole heir at law of the intestate, as the sole ground of his claim to be aggrieved by the order. On the hearing of the petition it appeared that A. was not, but one N. was, the sole heir at law of the intestate; but the county judge, at the close of the hearing, announced orally that he would grant the prayer of the petition. Afterwards, A. filed what purported to be an assignment to him of N.'s interest in the estate, dated some days before the verification of A 's petition, but not referred to therein, nor used' at the hearing; and the adverse party had no opportunity to contest the validity or effect of such alleged assignment. The county court subsequently made an order allowing A. to appeal. Held, error. A. having shown no right to appeal, at the hearing of his petition, and having been guilty of bad faith and laches.-[STATE REP.

Appeal from circuit court, Milwaukee county.
Cottrell, Cary & Hanson, for respondent.

Frank B. Van Valkenburgh, for appellant.

The case grows out of the divorce suit of Howard v. Howard, which was before this court on appeal from the judgment. therein, and is reported under the title of Downer, Adm'r, v. Howard, 44 Wis. 82. On that appeal the judgment of the circuit court, directing James Howard, the defendant, to pay certain sums of money to the attorney of Mrs. Howard, for counsel fees and expenses of the litigation, was affirmed.

The county court allowed the account of such attorney against the estate of Mrs. Howard to the amount of that judgment.

No appeal having been taken from such allowance within sixty days, James C. Howard filed his petition in the circuit court for leave to appeal therefrom. The petition states various reasons why the appeal was not taken within sixty days. It also states that the petitioner is the sole heir at law of Mrs. Howard, who died intestate, and this is the only averment showing that he could possibly have been aggrieved by the order of the county court from which he sought to appeal.

On hearing of the petition it was proved that the petitioner was not the heir at law of Mrs. Howard, but that one Newson was such heir. The circuit judge announced his decision orally, granting the prayer of the petition. Some days afterwards, and before the order allowing the appeal had been v3-1 (no. i)

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reduced to writing and filed, counsel for Mr. Howard presented to the court an instrument purporting to be an assignment from Newson to Howard of his interest in Mrs. Howard's estate.

This appeal is from the order of the circuit court allowing an appeal by James C. Howard from the order of the county court, allowing the claim of Mrs. Howard's attorney against her estate.

LYON, J. The petition for leave to appeal from the order of the county court allowing the account of Mrs. Howard's attorney should have been denied. Under the allegations of his petition, the respondent, James C. Howard, was not a party aggrieved by the order of the circuit court, unless he was the heir of Mrs. Howard. Such heirship was disproved on the hearing of the petition. Hence, he was not a party aggrieved, and could not appeal. Rev. St. 984, §§ 4035, 4039.

It does not appear that the instrument purporting to be an assignment by Newson of his interest in Mrs. Howard's estate to the respondent was used on the hearing of the petition, or that the administrator ever had opportunity to contest its validity, or that the order allowing the appeal was based upon it. The order merely recites that leave was granted to file the instrument, and it satisfactorily appears from the record that it was not used on the hearing of the petition.

The alleged assignment by Newson bears date December 2d, the petition was verified December 9th, and it was presented to the court and heard December 16th. The fair inference is that when he verified the petition the respondent knew that he was not the heir of Mrs. Howard. He was guilty, therefore, of bad faith and laches by claiming as heir and failing to disclose the assignment. Because of such bad faith and laches he is not entitled to the favorable consideration of the court in a matter resting somewhat in discretion.

The respondent having shown no right to appeal, it is quite immaterial whether the account of the attorney was or was not properly presented and allowed, and we need not consider that question. But it may not be improper to say that the record of the former appeal discloses that the attorney is fairly entitled to recover a large portion if not the whole of the sum allowed him by the county court.

The order of the circuit court must be reversed, and the cause remanded, with directions to that court to deny the petition of the respondent.

RICHARD OWENS, Appellant, vs. THE CITY OF MILWAUKEE,

Respondent.

Filed November 6, 1879.

Since the passage of chapter 129, Laws 1873, the remedy of lot owners in Milwaukee, injured by a change of grade in an adjoining street, is by appeal, within the time there limited, from the assessment of the board of public works.

One who, having knowledge that the acts of municipal officers were illegal, has assisted them therein, cannot recover for damages resulting from such illegal acts.

The authorities of Milwaukee undertook, under chapter 129, Laws 1873, to change the grade of a street and regrade according to the new grade so established. Their proceedings were irregular. Plaintiff, having filled his lot to the new grade, broug it an action for damages caused by the change. Held, that if he did such filling under the belief that the proceedings were legal it would be presumed, from his failure to appeal, that he assented to the assessment; so, too, will he be deemed to have assented if, having no knowledge of their irregularity, he took no measures to ascertain that fact. If he did such work knowing the proceedings were void the city is not liable. Dore v. Milwaukee, 42 Wis. 108, distinguished. Part of the damages claimed in this case arose from an assessment for. repaving with block pavement, authorized by chapter 322, Laws 1875, to be laid without petition from the lot owners. The council ordered one-third of expense assessed on the property, and two-thirds paid out of the ward fund. The complaint claimed that assessment was arbitrarily made, but did not show that more than one-third was assessed on the property, or that plaintiff's lots were assessed more than their just proportion. Held, that it did not show injury to him.

Appeal from Milwaukee county court.

Frank B. Van Valkenburgh, for appellant.

D. H. Johnson, for respondent.

TAYLOR, J. This action is brought This action is brought by the plaintiff against the city of Milwaukee to recover for the expenses of raising the grade of the street in front of the plaintiff's lot in said city, and for damages to said lot by reason of changing the grade and filling the street up to such new grade.

The plaintiff alleges that the grade of said street had been fixed and established in 1853, and the street graded in accordance therewith and paved, and that afterwards, in 1873, the common council of said city, pretending to act under the provisions of section 6, c. 129, Laws 1873, changed such established grade and raised the same several feet in front of said lot, and ordered such street to be filled in front thereof up to such new grade; that in pursuance of such order the plaintiff filled the street in front of his lot up to such grade, and that afterwards the said city, pretending to act under the provisions of chapter 322, Laws 1875, caused said street to be repaved, and that plaintiff was compelled to pay a part of the