Carpenter v. Russell

• Decision Date: 10 September 1903
• Citation: 73 P. 930,13 Okla. 277,1903 OK 66
• Parties: CARPENTER v. RUSSELL.
• Court: Oklahoma Supreme Court

73 P. 930

13 Okla. 277, 1903 OK 66

CARPENTER v. RUSSELL.

Supreme Court of Oklahoma

September 10, 1903

Syllabus by the Court.

1. All appeals from the probate court, when exercising its jurisdiction in purely probate matters, must be to the district court, regardless of whether the appeal presents a question of law only or both questions of law and fact.

2. Repeals by implication are not favored, and, when two statutes covering in whole or in part the same matter are not absolutely irreconcilable, effect should be given, if possible, to both.

3. A general act is not to be construed as applying to cases covered by a prior special act on the same subject.

Error from District Court, Cleveland County; before Justice Irwin.

Application of W. H. Carpenter for the allowance of his claim against Annis V. Russell, administratrix of the estate of John T Russell. From an order dismissing his appeal from the probate court, claimant brings error. Reversed.

J. H Everest and C. F. Smith, for plaintiff in error.

John H Mosier, for defendant in error.

BURFORD C.J.

This cause presents the sole question as to whether the act extending the jurisdiction of the probate court in civil and criminal matters, prescribing the procedure therein, and providing for appeals therefrom, enacted by the First Legislature, repeals section 14, art. 12, c. 19, St. 1890, on the subject of appeals. The plaintiff in error, Carpenter, is a creditor of the estate of John T. Russell, deceased. The defendant in error is the administratrix of said estate. The settlement of the estate is pending in the probate court of Cleveland county. Carpenter filed his application in the probate court, asking to have his demand declared a preferred claim against the real estate of the decedent not exempt. The probate court heard the motion and overruled it. Carpenter appealed to the district court of Cleveland county in the manner provided in article 13, c. 18, St. 1893. The district court dismissed the appeal upon the ground that the appeal presented a question of law only, and that the appeal should have been to the Supreme Court.

The construction of the provision of the act extending the jurisdiction of probate courts in certain cases has been before this court several times for determination, but the exact question here involved does not seem to have been heretofore decided in any reported case. The case of Bell v. Territory, 8 Okl. 75, 56 P. 853, was a bastardly proceeding, and it was there incidentally held, but not expressly decided, that the provisions of the probate chapter on appeals is still in force. In Decker v. Chill, 10 Okl. 251, 61 P. 1101, the decision was expressly limited to appeals from the judgment of the probate court rendered while exercising the ordinary jurisdiction of the justice of the peace, or while exercising concurrent jurisdiction with the district court. The cases of Chandler v. Colcord, 1 Okl. 260, 32 P. 330; Brickner v. Sporleder, 3 Okl. 561, 41 P. 726; Nix v. Gilmer, 5 Okl. 740, 50 P. 131; Johnson et al. v. Hays, 6 Okl. 582, 55 P. 1068; State Capital Printing Co. v. Board of Grant County, 8 Okl. 229, 56 P. 957; Vowell v. Taylor et al., 8 Okl. 625, 58 P. 944; Petrie v. Coulter, 10 Okl. 257, 61 P. 1058; McClung v. Penny, 11 Okl. 474, 69 P. 499; Stahl v. Wade, 11 Okl. 483, 69 P. 301; and Randolph v. Hudson (Okl.) 61 P. 1103-all in some manner involve questions arising out of appeals from the probate courts, either direct to this court, or by an intermediate appeal through the district court. But none of said causes involve a question arising out of the exercise of the probate jurisdiction of the probate court. There are expressions contained in some of these cases so general in terms as to embrace this class of cases, but, inasmuch as the question herein presented was not before the court in any of the adjudicated cases, it will not be presumed that the court intended to go beyond the question it had before it at the time.

The identical question now under consideration was before this court, and decided on a motion to dismiss the appeal, in cause No. 973, Rosetta Ward et al. v. Board of County Commissioners of Logan County, dismissed June 30, 1900, and not reported. In that case the plaintiffs in error appealed directly to the Supreme Court from an order of the probate court admitting a will to probate. The sole question sought to be raised by the record was one of law, as to the sufficiency of the written instrument to constitute a valid will. The case came on for hearing in this court, and on full consideration the entire court was of the opinion that an appeal would not lie to the Supreme Court from an order of the probate court when exercising purely probate jurisdiction, and the court dismissed the appeal for the reason the same was improperly taken. S.Ct. Journal, No. 4, p. 333. As no opinion was prepared in the Ward Case, we will here briefly state the grounds for said decision, which must necessarily be the same in this case. Our probate court was created by the organic act, and was given jurisdiction in probate matters. It had no jurisdiction in civil and criminal causes until the adoption and approval by Congress of the legislative act passed by our First Legislative Assembly, and which is entitled "An act extending the jurisdiction of the probate court in civil and criminal cases and prescribing the procedure therein and providing for appeals therefrom." St. 1893, c. 18, art. 15. Section 1 of this act confers upon the probate courts the ordinary powers and jurisdiction of justices of the peace, and concurrent jurisdiction generally with the district court in all civil cases wherein the sum claimed does not exceed $1,000. A number of specific civil causes are excluded from its jurisdiction. Section 2 provides the procedure which shall govern in the trial of causes in said court, and section 5 provides the manner in which appeals shall be taken, and is as follows: "Appeals from the final judgment of said probate courts shall be allowed and taken to the Supreme Court of this territory in the same manner as from the district court, and with like effect when only questions of law are involved in the appeal. If question of fact are to be retried in the appellant court, the appeals shall be taken to the district court of the county in manner and from as appeals are taken from judgments of justices of the peace." The jurisdiction conferred by this act was ratified by act of Congress approved March 3, 1891, c. 543, 26 Stat. 1026. The same Legislature enacted a general, comprehensive law, covering the entire subject of probate jurisdiction and procedure, being chapter

18, St 1893. This chapter contains 17 different articles, each subdivided into a number of sections, and embraces the entire subject of probate courts, decedents' estates, wills, administrators, executors, guardians, settlement of estates, and the procedure in such matters, as well as what orders and judgments may be appealed from, and to what court such appeals shall be taken. Section 14, art. 13, of said chapter, provides as follows: "An appeal may be taken to the district court from a judgment, decree or order of the probate court, first, granting or refusing or revoking letters testamentary or of administration or of guardianship; second, admitting or refusing to admit a will to probate; third, against or in favor of the validity of a will or revoking the probate thereof; fourth, against or in favor of setting apart property or making an allowance for a widow or child; fifth, against or in favor of directing...