Broadwater v. Richards

• Decision Date: 31 January 1881
• Citation: 4 Mont. 52
• Parties: BROADWATER and others v. RICHARDS, Adm'r.
• Court: Montana Supreme Court

4 Mont. 52

BROADWATER and others

v.RICHARDS, Adm'r.

Supreme Court of the Territory of Montana.

January Term, 1881.

Questions of fact cannot be examined in this court, except upon appeal from an order granting or denying a new trial.

An appeal will lie to the district court from an order of the probate court approving or disapproving the account of an administrator, and the appeal brings the whole case for review and adjudication before the district court, which has power to make any order in a case properly before it that the probate court might make in the same case.

Appeal from First district, Custer county.

Blaisdell & Vivion and Henry N. Blake, for appellant.

Strevell & Garlock, for respondents.

WADE, C. J.

This is an appeal from a judgment of the district court setting aside an order of the probate court of Custer county, approving the accounts of Thomas Richards, as administrator of the estate of James R. Brooks, deceased, and directing that the administrator, within 30 days from the date of the rendition of the judgment, file with the probate judge a good and sufficient bond as administrator, and, before so doing, that he retain in possession the money belonging to the estate, and thereupon qualify as administrator according to law, and proceed legally to the administration of the estate, supplying all omissions in the probate record, and giving notice to all persons to file their claims against the estate; and that upon failure to file such bond the letters of administration will cease and the said Richards be removed from his official position; and, in case of such failure, that he pay into the hands of the clerk of the court all moneys which have come into his possession as such administrator, and that the cause be returned to the probate judge for proceedings in accordance with this judgment.

1. There was no motion for a new trial, and hence we cannot look into or review the evidence contained in the record. We have frequently decided that questions of fact cannot be examined if there is no appeal from an order granting or refusing a motion for a new trial. Alport v. Kelley, 2 Mont. 343;Chumasero v. Viall, 3 Mont. 376;Largey v. Sedman, Id. 472. The only question properly before us for consideration, therefore, is whether the judgment is such an one as the district court had jurisdiction to render. Under section 432 of the Code, appeals from the probate court to the district court are authorized from orders made on the settlement of administrators. An order approving or disapproving the account of an administrator is in the nature of a judgment, and an appeal from such an order or judgment brings the whole case before the district court for review and adjudication. It may affirm or set aside such an order. It hears the case upon the proofs, and renders judgment as in other cases. The party against whom the judgment is rendered may appeal from the judgment, or he may make a motion for a new trial, and from the order granting or refusing the same an appeal lies to this court, which...