Opinion
April 12, 1966. —
May 10, 1966.
APPEAL from an order of the county court of Milwaukee county: MICHAEL T. SULLIVAN, Judge. Affirmed.
For the appellant there was a brief by Rummel Connolly, attorneys, and L. William Connolly of counsel, all of Milwaukee, and oral argument by L. William Connolly.
For the respondent the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
Frank Radocay died intestate at Milwaukee, Wisconsin, on January 10, 1950, leaving assets consisting of real and personal property valued in excess of $100,000.
Administration proceedings were conducted by the county court of Milwaukee county, and notice for proof of heirship was filed on September 11, 1950. The heirship proceedings were held open until 1953 to allow the appellant, Anka Zgela, a Yugoslavian national residing in that country, sufficient time to accumulate evidence to substantiate her claim that she was a daughter of the decedent. At the time of the proof-of-heirship proceedings, the appellant was represented by an attorney, but not the same counsel who has presented this appeal.
In 1953, the county court heard the evidence submitted by the appellant and determined that it was insufficient to establish heirship; on April 14, 1954, the court ruled that the decedent died without leaving any known heirs or next of kin and also held that the decedent's assets escheated to the state of Wisconsin. The real property was subsequently sold by the state.
In 1965, the appellant filed a petition for a hearing under sec. 318.03 (4), Stats., and sought to present evidence establishing her right to inherit the $96,580 personal-property portion of the decedent's estate. The trial court dismissed the appellant's petition, finding that the heirship determination was res judicata in a proceeding brought under sec. 318.03 (4). This appeal is from the aforesaid order of dismissal.
Statute Involved.
"318.03 (4) The moneys received by the state treasurer pursuant to ss. 237.01, 238.136 and 318.03 (1) shall be paid to the owner on proof of his right thereto. The claimant may, within 7 years after the date of publication by the treasurer of notice of receipt thereof as provided by s. 14.42 (15), file in the county court in which the estate was settled, a petition alleging the basis of his claim to the residue or to the legacy or share. The court shall order a hearing upon the petition; and 20 days' notice thereof shall be given by the claimant to the attorney general, who shall appear for the state at the hearing. If the claim is established it shall be allowed without interest; and the court shall so ceritfy [certify] to the department of administration, who shall audit and the state treasurer shall pay the same. If real property has been adjudged to escheat to the state pursuant to s. 237.01 (7) the county court which made the adjudication may adjudge at any time before title has been transferred from the state that the title shall be transferred to the proper owners pursuant to proceedings brought in the manner provided in this subsection."
Although the appellant had a hearing in the county court, in which it was determined that she was not an heir of the deceased Frank Radocay, she nevertheless has sought further inquiry into that question pursuant to sec. 318.03 (4), Stats. In considering her present application, the trial court held that the prior order was determinative of her claim and that further examination was barred since the matter was res judicata; the trial court stated that "the quantum of evidence and burden of proof upon the trial of heirship is identical to that required to establish claim to a refund."
The principal argument advanced by the appellant is that an amendment of sec. 318.03 (4), Stats., evidences a legislative intention to grant a hearing under that statute to an applicant notwithstanding the fact that he may have previously unsuccessfully presented his claim in a proof-of-heirship proceeding. This argument relies on the amendment contained in ch. 190, sec. 37, Laws of 1933. Prior to its amendment in 1933 the statute expressly provided that the remedy for obtaining escheated funds was available only to one "who had not before asserted claim thereto." The 1933 amendment omitted the quoted words in the foregoing sentence.
The appellant urges that this reflects an intention on the part of the legislature to permit applicants to resubmit their claims to escheated property and in effect eliminates the availability of res judicata as a defense.
In our opinion, this contention is unsound. The statutory change was a part of Bill No. 123, S., which contains as a note to sec. 37 the following:
"`Who had not before asserted claim thereto' is struck out. If the claimant appeared in the probate proceedings he is barred by the judgment. Any other assertion of his claim should not be a bar; he should have `his day in court.' When he has had that, he is through."
It should be observed that although Bill No. 123, S., was in form a revisor's bill, it was upon its face stated to be the work of the committee on rules of pleading, practice and procedure created by sec. 251.18, Stats.
Our examination of this legislative history persuades us that the amendment was not designed to remove the defense of res judicata. The defense of res judicata to a claim under sec. 318.03 (4), Stats., may properly be presented in a probate court. Estate of Hatzl (1964), 24 Wis.2d 64, 72, 72a, 127 N.W.2d 782, 129 N.W.2d 249. Res judicata is particularly applicable since it is apparent that the amount of proof and the quality thereof would be the same in the proceedings under sec. 318.03 (4) as it was in the proof of heirship.
Res judicata is a well-established doctrine calculated to prevent repetitive litigation. Cathey v. Industrial Comm. (1964), 25 Wis.2d 184, 186, 130 N.W.2d 777; O'Brien v. Hessman (1962), 16 Wis.2d 455, 458, 114 N.W.2d 834; Estate of Hertzfeld (1960), 10 Wis.2d 333, 338, 102 N.W.2d 838.
In our opinion, the instant case is one in which the 1954 order of the county court is conclusive in the current proceedings. We believe that the appellant has had her "day in court."
By the Court. — Order affirmed.