In re Bennett's Estate

Decision Date28 August 1922
Docket NumberNo. 22694.,22694.
PartiesIn re BENNETT'S ESTATE. BENNETT v. BENNETT.
CourtMissouri Supreme Court

Appeal from Circuit Court; Atchison County; John M. Dawson, Judge.

In the matter of the estate of 3. O. Bennett. Proceeding between Ibbie Bennett, executrix, and William Bennett. From an order of the circuit court, dismissing the appeal of Ibbie Bennett from an order of the probate court removing her as executrix and appointing an administrator, she appeals. Case ordered transferred to the Kansas City Court of Appeals.

W. C. Ellison, of Maryville, for appellant. John C. Hunt, of Rockport, for respondent.

DAVID E. BLAIR, J.

Appeal from an order of the circuit court of Atchison county, dismissing the appeal of Ibbie Bennett, executrix of the last will and testament of J. S. Bennett, deceased, from an order of the probate court of said county, removing her as the executrix and appointing an administrator during the pendency of a suit filed in the circuit court of said county to contest said will.

After the lodgment in the circuit court of said appeal of the said executrix, respondent filed a motion in said court to dismiss the appeal, ,on the ground that said executrix is not entitled to appeal from such order of the probate court, and that there is no warrant or authority of law authorizing her to maintain an appeal from such order. The circuit court sustained said motion, and dismissed the appeal of said executrix, and, after unsuccessful motions for new trial and in arrest of judgment, an appeal to this court was granted to her.

The respondent has not favored us with a brief. The first question raised by the brief of appellant goes to the jurisdiction of this court. She contends that the case is not of the kind over which this court has exclusive appellate jurisdiction, and, since the records fail to disclose the amount in dispute, measured by a money standard, this court is without jurisdiction, and the case should be transferred to the Kansas City Court of Appeals. It therefore becomes our duty to determine such question of jurisdiction before proceeding to a consideration of the merits of the case.

The fact that appellant in her affidavit for appeal prayed that an appeal be granted to this court, and that she is now raising the question of our jurisdiction, does not affect such question of jurisdiction. As said by Faris, J., in the case of In re Letcher, 269 Mo. loc. cit. 147, 190 S. W. loc. cit. 21:

"While the question of our jurisdiction is not...

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20 cases
  • State v. Egan
    • United States
    • Missouri Court of Appeals
    • 17 Noviembre 1954
    ...of parties or agreement of counsel [State ex rel. Thompson ex rel. Pugh v. Bright, 298 Mo. 335, 250 S.W. 599, 600(1); In re Bennett's Estate, Mo., 243 S.W. 769; Dye v. School Dist. No. 32, Mo.App., 190 S.W.2d 467(1); State v. Sparks, 180 Mo.App. 495, 166 S.W. 642, The information herein was......
  • Klaber v. O'Malley
    • United States
    • Missouri Supreme Court
    • 18 Diciembre 1935
    ...by either party, but it is our duty to determine that question. State ex rel. Rucker v. Hoffman, 313 Mo. 667, 288 S.W. 16; Bennett v. Bennett (Mo.Sup.) 243 S.W. 769; In Letcher, 269 Mo. 140, loc. cit. 147, 190 S.W. 19. Under the Constitution, section 12, art. 6, and Amendment of section 12 ......
  • In re Village (or Town) of Grandview
    • United States
    • Missouri Supreme Court
    • 10 Octubre 1927
    ...is not that character of case. Even if it were, the record does not disclose such amount. Such facts must affirmatively appear. [In re Bennett's Estate, supra, and cases Title to real estate is not involved. The only way in which real estate is in any way affected is in respect to the right......
  • Village of Grandview, of Jackson County, v. McElroy
    • United States
    • Missouri Supreme Court
    • 10 Octubre 1927
    ...to consider the merits of the questions presented for appellate review. Parker v. Zeisler, 139 Mo. 298. 40 S. W. 881; In re Bennett's Estate (Mo. Sup.) 243 S. W. 769; In re Letcher, 269 Mo. 140, loc. cit. 147, 190 S. W. loc. cit. 21; State ex rel. Rucker v. Hoffman, 313 Mo. 667, loc. cit. 6......
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