Davis v. Williams

• Decision Date: 08 February 1938
• Docket Number: 26621.
• Citation: 76 P.2d 251,182 Okla. 80,1938 OK 83
• Parties: DAVIS v. WILLIAMS.
• Court: Oklahoma Supreme Court

76 P.2d 251

182 Okla. 80, 1938 OK 83

DAVIS v. WILLIAMS.

No. 26621.

Supreme Court of Oklahoma

February 8, 1938

By "substantial right" is meant matter of substance as distinguished from matter of mere form.

Syllabus by the Court.

Where a decedent during his lifetime commenced an action for the recovery of money, and after his death his duly appointed administratrix makes application to the county court for permission to employ attorneys to revive and continue such action, and the county court makes an order dismissing and refusing to hear said application on its merits, an appeal from such order may be taken to the district court by permission of the eighth subdivision of section 1397 O.S.1931, 58 Okl.St.Ann. § 721, subd. 8.

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Application in the county court by Ida F. Williams, special administratrix of the estate of Charles Mashunkashey, Osage AllotteeNo. 464, for permission to employ attorneys and to pay a reasonable retainer fee, opposed by Phil W. Davis.From a judgment of the district court reversing a judgment of the county court dismissing the application, Phil W. Davis appeals.

Affirmed.

PHELPS J., dissenting.

W. I Williams and Phil W. Davis, Jr., both of Tulsa, for plaintiff in error.

Harry Seaton and Henry Duncan, both of Tulsa, for defendant in error.

WELCH Justice.

The controlling question is whether a certain order made by the county court in a probate cause was an appealable order under section 1397, O.S.1931, 58 Okl.St.Ann. § 721.

Essential facts are that the deceased in his lifetime had commenced an action in a proper court against a former guardian, seeking recovery of money therein alleged to be in default and due from his former guardian.The action was undisposed of upon plaintiff's death.A special administratrix of his estate was appointed, and she filed application in the administration case for permission to employ attorneys and pay a reasonable retainer fee, to revive and prosecute the action against the former guardian of deceased.That application came on for hearing.A creditor of the estate objected and moved to dismiss the application.

That motion was sustained, the county court refused to hear the application and dismissed the same, whereupon the administratrix appealed to the district court.

In the district court the creditor again objected, and moved to dismiss the appeal.That motion was overruled and the appeal heard.The district court reversed the order of the county court and remanded the cause directing the county court in effect to vacate its order dismissing the application, and to proceed to hear the application on its merits.

From that order and judgment in the district court the creditor prosecutes this appeal, and presents assignments of error which are disposed of by a determination of the controlling question whether the original order of the county court was an appealable order under section 1397, O.S.1931, 58 Okl.St.Ann. § 721.That section in the first seven subdivisions specifies various orders which are appealable, and by subdivision 8, 58 Okl.St.Ann. § 721, subd. 8, provides that an appeal may be taken "from any other judgment, decree or order of the county court in a probate cause, or of the judge thereof, affecting a substantial right."

In 3 C.J. 453, it is said: "By substantial right is meant matter of substance as...