In re Blankenbaker's Estate

• Decision Date: 26 May 1939
• Docket Number: 7959.
• Citation: 91 P.2d 401,108 Mont. 383
• Parties: In re BLANKENBAKER'S ESTATE.
• Court: Montana Supreme Court

91 P.2d 401

108 Mont. 383

In re BLANKENBAKER'S ESTATE.

No. 7959.

Supreme Court of Montana

May 26, 1939

Proceeding in the matter of the estate of Virgil F. Blankenbaker deceased, to determine the inheritance tax due the state. From an order denying a motion for new trial, rehearing, and reappraisement, Ella M. Blankenbaker appeals and the State Board of Equalization moves to dismiss the appeal.

Motion granted.

Ralph J. Anderson, of Helena, for appellant.

S. B Chase, Jr., of Great Falls, for respondent.

ANGSTMAN Justice.

On the 3rd day of August, 1938, the district court of Chouteau county entered an order and judgment determining the inheritance tax due in the estate of Virgil F. Blankenbaker deceased. Thereafter Ella M. Blankenbaker, sole heir and executrix of the estate, filed a motion for new trial, rehearing and reappraisement. This motion was denied on January 5, 1939. On March 6 the executrix filed a notice of appeal from the order of January 5. No appeal was taken from the order or judgment of August 3rd, 1938, within sixty days after its entry, or at all. The State Board of Equalization has moved to dismiss the appeal, contending that the law does not provide for an appeal from an order denying a motion for new trial, rehearing or reappraisement.

The right to apply for a rehearing in a proceeding to determine the inheritance tax is provided for in section 10400.28, Revised Codes, reading: "The attorney general, state board of equalization, public administrator, county attorney, or any person dissatisfied with the appraisement or assessment and determination of such tax may apply for a rehearing thereof before the district court within sixty (60) days from the fixing, assessing and determination of the tax by the district court as herein provided on filing a written notice which shall state the grounds of the application for a rehearing. The rehearing shall be upon the records, proceedings, and proofs had and taken on the hearing as herein provided unless additional or newly discovered evidence be alleged therefor, and a new trial shall not be had or granted unless specially ordered by the district court."

If the right of appeal from an order denying a rehearing or reappraisement exists it is by virtue of section 10366, which adopts the general statutes--sections 9008 to 9832--relating to new trials and appeals for probate proceedings not otherwise expressly provided for. There is no express appeal provided for from such an order, and, if it is appealable, it is by virtue of section 9731, Revised Codes, which is among those adopted by section 10366. Section 9731 is not sufficiently comprehensive to authorize an appeal from an order denying a rehearing or reappraisement. The statute not authorizing it, an appeal does not lie. In re Estate of Tuohy, 23 Mont. 305, 58 P. 722; Id., 33 Mont. 230, 83 P 486; In re Kelly's Estate, 31 Mont. 356, 357, 78 P. 579, 79 P. 244; State ex rel. Regis v. District Court, 102 Mont. 74, 55 P.2d 1295; State ex rel. Frost v. Barnett, 49 Mont. 252, 141 P. 287; State ex rel. Rankin v. Martin, 65 Mont. 323, 211 P. 210; State ex rel. King v. District Court, 95 Mont. 400, 26 P.2d 966; State ex rel. Lalonde v. Lemkie, 62 Mont. 51, 202 P. 1109; State ex rel. Bole v. Lay, 89 Mont. 541, 300 P. 238; Ringling v. Biering, 83 Mont. 391, 272 P. 688; State ex rel. Duckworth v. District Court, 107 Mont. 97, 80...