In re Estate of James

• Decision Date: 07 October 1903
• Docket Number: 13,115
• Citation: 97 N.W. 22,70 Neb. 132
• Parties: IN THE MATTER OF THE ESTATE OF ROBERT N. JAMES, DECEASED, ET AL., APPELLEES, v. LILLIE O'NEILL, APPELLANT
• Court: Nebraska Supreme Court

97 N.W. 22

70 Neb. 132

IN THE MATTER OF THE ESTATE OF ROBERT N. JAMES, DECEASED, ET AL., APPELLEES, v. LILLIE O'NEILL, APPELLANT

No. 13,115

Supreme Court of Nebraska

October 7, 1903

APPEAL from the district court for Hamilton county: SAMUEL H SORNBORGER, JUDGE. Motion to dismiss sustained.

MOTIONS SUSTAINED.

Thomas H. Matters, for appellant.

Eugene J. Hainer and Jerome H. Smith, contra.

POUND C. DUFFIE and KIRKPATRICK, CC., concur.

OPINION

POUND, C.

Counsel seems to have assumed that he could take an appeal from the district court to the supreme court in a probate proceeding. At any rate, he filed no petition in error and caused no summons in error to issue. He now contends that an appeal is maintainable. I do not think this view can be sustained. It is not every proceeding to obtain the setting aside of an order by the court which rendered it, even though predicated upon fraud, that is equitable in its nature. Courts of law have always had the power to set aside their own orders, rendered in a proceeding pending before them, during the pendency of such proceeding, upon showing that such orders were obtained by fraud. It is only where a final judgment has been procured by fraud, or an order which, by reason of the lapse of the term and its finality, can not be set aside by the ordinary powers of the court, that its equitable powers come into play. In this case there appears no ground for thinking that any equitable powers of the county court needed to be exercised in order to give the petitioners all the relief which they sought. The case is not analogous to a final order admitting a will to probate, nor to an order of final statement of an estate. The order sought to be set aside was an interlocutory one allowing an alleged widow $ 15 a month for maintenance pending administration, and was subject to modification during the administration, as circumstances might require. Baker v. Baker, 51 Wis. 538, 8 N.W. 289; In re Fisher, 15 Wis. 511.

The appearance of the defendants on June 13, 1903, judgment having been rendered November 11, 1902, does not constitute a commencement of proceedings in error in the six months limited by the statute. They are not commenced until summons in error issues. Bemis v. Rogers, 8 Neb. 149. The date of voluntary appearance, no summons having been issued, is to be taken as the date of commencement. Benson v. Michael, 29 Neb. 131, 45 N.W. 276. Moreover no petition...