01-2939 In re: the Estate of Melvin Reise, deceased v. Morlen, Register of Probate, Washington County (56577)

Listen to this article

Construing plaintiff’s petition as one for mandamus, we agree with plaintiff that defendant did not have the authority to reject her petition and had a plain legal duty to file the petition so that it might be heard by the court.

“The Register functions in both a clerical and quasi-judicial capacity. The Register has a duty ‘to file and keep all papers properly deposited with him or her.’ Wis. Stat. sec. 851.72(1). The Register may refuse to accept any paper for filing until the fee is paid. Wis. Stat. sec. 851.73(1)(f). The statute does not provide any other grounds for rejecting a pleading, and we are not persuaded by the Register’s argument that she has the authority under either secs. 851.72 or 851.73 to reject Reise’s petition for filing on the grounds she has offered. The Register’s acceptance of pleadings for filing falls within the Register’s clerical functions, and the Register had a plain legal duty to accept Reise’s petition for filing.”

Writ granted.

Recommended for publication in the official reports.

Dist II, Washington County, Per Curiam

Attorneys:

For Appellant: John L. Becker, Brookfield

For Respondent: Matthew J. Frank, Madison; Kimberly A. Nass, West Bend