In re Estate of Annie Wells

• Decision Date: 13 December 1949
• Citation: 187 Or. 462,212 P.2d 729
• Parties: IN RE ESTATE OF ANNIE WELLS BROWN <I>v.</I> IRWIN, EXECUTRIX
• Court: Oregon Supreme Court

187 Or. 462

212 P.2d 729

IN RE ESTATE OF ANNIE WELLS BROWNv.

IRWIN, EXECUTRIX

Supreme Court of Oregon.

Motion to dismiss appeal allowed December 13, 1949.

Executors and administrators — Claim against estate — Plenary trial

1. One of clear purposes of 1949 Act relating to proceedings on a claim against estate of decedent is to make it certain that no proceedings on a claim shall reach Supreme Court on appeal until there shall have been a plenary trial in Circuit Court, regardless whether case comes to Circuit Court by appeal from county court or whether it originates in Circuit Court for Multnomah County, which has exclusive probate jurisdiction. O.C.L.A. § 13-208; §§ 19-704, as amended and 19-704a to 19-704h, as added by Laws 1949, c. 477.

Executors and administrators — Allowance of claim against estate — Plenary suit

2. Where executrix, after allowance of claim against estate of decedent by Circuit Court of Multnomah County exercising probate jurisdiction, failed to demand that matter be tried in a separate plenary action as authorized under the 1949 Acts, the order allowing the claim was not appealable to Supreme Court. O.C.L.A. § 13-208; §§ 19-704, as amended and 19-704a to 19-704h, as added by Laws 1949, c. 477; Laws 1949, c. 530, §§ 1 et seq., 10, 11, 17.

Action — "Summary proceeding" — "Plenary suit"

3. A "summary proceeding" differs from a "plenary suit" in that the former is based upon a petition and proceeds without formal pleading while the later proceeds upon formal pleading. O.C.L.A. §§ 5-101 to 5-105.

See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Plenary Suit" and "Summary Proceeding".

Executors and administrators — Acts of 1949 requiring a separate plenary action — Statutes of procedure

4. Fact that proceedings on claim against estate of the decedent had been commenced before effective date of 1949 Acts requiring a separate plenary action in Circuit Court before order relating to claim against estate of decedent could be appealed to Supreme Court would not render Circuit Court's order granting the claim, an appealable order, in absence of a separate plenary action, since the acts are statutes of procedure relating to jurisdiction of court and took away all right to proceed under prior statutes in absence of any saving clause. O.C.L.A. § 13-208; §§ 19-704, as amended and 19-704a to 19-704h, as added by Laws 1949, c. 477; Laws 1949, c. 530, § 1 et seq. Statutes — Repeal of a law conferring jurisdiction — Saving clause

5. The repeal of a law conferring jurisdiction takes away all right to proceed under the repealing statute, as to all actions, suits or proceedings pending, unless there is a saving clause in the repealing statute, and such rule is applicable to an appellate as well as court of original jurisdiction.

Appeal and error — Constitutional law — Statutory privilege

6. The remedy by appeal is not a constitutional right, but a statutory privilege in which nobody has a vested right.

                  See: 34 C.J., Ext'r. and Admt'rs., § 455
                

Appeal from Circuit Court, Multnomah County (Probate Department).

ASHBY C. DICKSON, Judge.

On motion of respondents to dismiss appeal filed November 9, 1949.

Koerner, Young, Swett & McColloch and John P. Bledsoe, of Portland, for the motion.

D.P. Price and Joe P. Price, of Portland, contra.

Before LUSK, Chief Justice, and BRAND, BELT, ROSSMAN, BAILEY, HAY and PAGE, Justices.

Proceeding in the matter of the estate of Annie Wells, deceased, wherein a claim against the estate was filed by A.J.W. Brown and others.

An order was entered by the Circuit Court, Multnomah County (Probate Department), Ashby C. Dickson, J., allowing the claim, and the estate of Annie Wells, deceased, by Mabel Irwin, executrix, appealed. A motion was made to dismiss the appeal.

The Supreme Court, Lusk, C.J., allowed the motion to dismiss the appeal on ground that order allowing the claim was not an appealable order.

LUSK, C.J.

This is a motion to dismiss an appeal from the order of the Circuit Court (Probate Department) for Multnomah County allowing a claim presented by the respondents to the executrix of the estate of Annie Wells, deceased, and rejected by the executrix. The ground of the motion is that this court has no jurisdiction over the subject matter for the reason that, as contended by the respondents, the order in question is not an appealable order under the provisions of Ch. 477, Oregon Laws 1949.

In 1919 probate jurisdiction in Multnomah County was taken from the County Court and conferred upon the Circuit Court. Ch. 59, Oregon Laws, 1919. Section 7 of Ch. 59 became § 13-208, O.C.L.A., and provided that the procedure and practice in probate matters in the Circuit Court of Multnomah County "shall be governed by the existing laws applicable to such proceeding without any change, except that appeals may be taken direct to the Supreme Court from the judgments of the circuit court in all such matters, and except, further, that in a probate proceeding in which a claim is rejected by the administrator or executor, the claim may be presented to the court for rejection or allowance, as provided by section 19-704, or, if either party demand it, the claimant must in the first instance bring action against the administrator in the manner in which other actions are brought, and the cause be tried and disposed of in the same manner as any other action."

Section 19-704, O.C.L.A., prescribed the procedure to be followed by the executor or administrator in allowing or rejecting claims, and provided that when a claim was rejected "said claimant may present his claim to the county court for allowance, giving the executor or administrator 10 days' notice of such application to the court. The court shall have power to hear and determine in a summary manner all demands against any estate agreeable to the provisions of this act, and which have been so rejected by the executor or administrator, and shall cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judgment from which an appeal may be taken as in ordinary cases".

The foregoing provisions have to do with procedure in the County Court, and the appeal of which they speak is, of course, an appeal from the order of the County Court to the Circuit Court.

The effect of the two sections read together, that is, §§ 13-208 and 19-704, was to authorize in Multnomah County the same procedure in the Circuit Court, sitting in probate, as prevailed in the County Courts with the exceptions that special provision was made in § 13-208 for appeals to the Supreme Court from the decision of the Multnomah County Circuit Court "in all such matters" and for the bringing of an action on the claim and the trial of the cause in the same manner as any other action upon the demand of either party, in lieu of the summary hearing provided for in § 19-704.

So, the matter stood until Ch. 477, Oregon Laws 1949, became effective. That chapter consists of an amendment of § 19-704 and the enactment of a number of new sections to be known as §§ 19-704a to 19-704h, both inclusive. Certain changes in the prescribed procedure to be followed by the executor or administrator in allowing or rejecting claims are made, but they are not material here. We are concerned with the following new sections, which are a substitute for the above-quoted provisions of § 19-704 governing the procedure in court:

"Section 19-704b. Any claimant may present any such rejected claim to the court for allowance within 30 days after service of notice upon him or his attorney of such rejection."

"Section 19-704c. The court shall have jurisdiction and power in a summary manner to hear and determine any such rejected claim and forthwith shall cause a concise entry of the order of allowance or rejection thereof to be made in the probate journal."

"Section 19-704d. If such order shall have been made by the county court, it shall have the force and effect of a decree, from which an appeal to the circuit court may be taken as in ordinary matters in probate."

"Section 19-704e. If such order shall have been made by the circuit court, and either party be aggrieved thereby, he may cause the matter to be tried as an action or suit, as the case may be, in and by the circuit court, by serving on the opposing party or his attorney, and filing with the clerk of the court, a notice in writing, signed by himself or his attorney, to the effect that he demands such trial thereof. Such notice shall be so served and filed within 30 days from and after the making of such entry of such order of allowance or rejection upon summary hearing."

"Section 19-704f. Every such matter for trial in the circuit court, whether it shall have arrived there by means of such appeal or been noted and set for trial by reason of such demand, shall be, unless the parties otherwise agree and the court approve, tried anew, and fully, as an action if the claim be of cognizance at law, or as a suit if the claim be of cognizance in equity."

"Section 19-704g. An appeal shall lie to the supreme court from the judgment, decree or other determinative order of the circuit court made in such matter, as in the ordinary case."

At the same session that these things were done § 13-208 was repealed. Oregon Laws 1949, Ch. 530, § 17. The said chapter 530 is a comprehensive act relating to the jurisdiction and procedure and practice in judicial districts comprising but one county and having a population of more than 300,000. Multnomah County is the only such county in the state. Section 10 of this act provides:

"In the circuit court in such judicial district the procedure and practice pertaining to causes, matters and proceedings in domestic relations and probate shall be governed by the laws applicable to such causes, matters and proceedings without any change, and appeals may be taken direct to the supreme...