Barker v. Daniels

• Decision Date: 18 September 1945
• Docket Number: 31950.
• Citation: 161 P.2d 854,195 Okla. 690,1945 OK 226
• Parties: BARKER et al. v. DANIELS.
• Court: Oklahoma Supreme Court

161 P.2d 854

195 Okla. 690, 1945 OK 226

BARKER et al. v. DANIELS.

No. 31950.

Supreme Court of Oklahoma

September 18, 1945

Appeal from District Court, Washington County; James T. Shipman Judge.

Proceeding in the matter of the estate of Samuel W. Daniels, deceased. The county court entered its order vacating and setting aside its former decree revoking the letters of Samuel William Daniels as administrator of the estate, and from such order Jessie Barker, nee Daniels, and others, persons interested in the estate of Samuel W. Daniels, deceased, appealed to the district court. From judgment of the district court dismissing the appeal for lack of jurisdiction, Jessie Barker, nee Daniels, and others, persons interested in the estate of Samuel W. Daniels, deceased, appeal.

Appeal dismissed.

Syllabus by the Court.

On appeal to the district court from an interlocutory order of the county court in an administration proceeding, an order of the district court dismissing the appeal for lack of jurisdiction is not a final order and this court is without jurisdiction to review such order of the district court on appeal therefrom.

George Paschal, of Tulsa, for plaintiffs in error.

J. B Underwood, of Tulsa, for defendant in error.

ARNOLD Justice.

On February 9, 1943, the county court of Washington County entered a decree in probate cause No. 2725, In the Matter of the Estate of Samuel W. Daniels, deceased, revoking the letters of Samuel William Daniels as administrator of said estate, discharging said administrator and ordering the administration of said estate closed. Thereafter on February 14, 1944, on motion of the administrator and after a full hearing, said county court entered its order vacating and setting aside its former decree of February 9, 1943. From this order certain heirs of the decedent, plaintiffs in error here, appealed to the district court of Washington County and on May 4, 1944, that court dismissed the appeal for lack of jurisdiction on the ground that the order appealed from is not an appealable order. From this judgment and order of the district court this appeal is prosecuted.

This appeal is by petition in error and transcript, and appellee has filed a motion to dismiss because of the alleged insufficiency of the court clerk's certificate to the transcript. This motion might well be sustained, but we prefer to base our decision on a firmer ground.

The judgment of the district court dismissing the appeal for lack of jurisdiction was evidently based on the provisions of 58 O.S.A. § 721, the language of which, material to be considered here, reads:

'An appeal may be taken to the district court from a judgment, decree or order of the county court:

'1. Granting, or refusing, or revoking letters testamentary or of administration, or of guardianship.

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'8. From any other judgment, decree or order of the county court in a probate cause, or of the judge thereof, affecting a...