In re Estate of Hansen

• Decision Date: 07 November 1928
• Docket Number: 26063
• Citation: 221 N.W. 694,117 Neb. 551
• Parties: IN RE ESTATE OF L. A. HANSEN. v. THOMAS A. HANSEN ET AL., APPELLANTS J. A. BALLANTYNE ET AL., APPELLEES,
• Court: Nebraska Supreme Court

221 N.W. 694

117 Neb. 551

IN RE ESTATE OF L. A. HANSEN.

J. A. BALLANTYNE ET AL., APPELLEES, v. THOMAS A. HANSEN ET AL., APPELLANTS

No. 26063

Supreme Court of Nebraska

November 7, 1928

APPEAL from the district court for Antelope county: ANSON A. WELCH JUDGE. Reversed, with directions.

REVERSED.

Lyle E Jackson, Williams & Kryger and J. A. Donohoe, for appellants.

Mapes McDuffee & Mapes, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, and EBERLY, JJ., and REDICK, District Judge.

OPINION

GOSS, C. J.

This is an appeal by the executors from a judgment of the district court. The cause had been appealed by certain creditors of the estate from the county court to the district court. The executors had ineffectually moved in the district court to dismiss the appeal from the county court. The matters in controversy were thereupon tried on the merits. On appeal here they were so argued, but the executors also raised the question of the jurisdiction of the district court to consider the appeal. They base their objection to the jurisdiction on the ground that the order of the county court was not a final order and was not appealable.

We think it unnecessary to state the facts further save as they serve to illuminate the making of the order in the county court.

An order barring claims was entered October 14, 1922. On June 5, 1923, the executors filed a detailed report of the receipts and expenditures to that date, showing, among other things, the payment of interest on mortgages on real estate, the payment of taxes, and payments made to the widow on account of her allowance. On November 23, 1925, the executors filed another report of their receipts and disbursements and petitioned the county court for a final settlement. This was set for hearing on December 21 and notice thereof was published. J. A. Ballantyne and Security Bank of Meadow Grove filed detailed objections to the report of the executors, as did also the Tilden National Bank, challenging expenditures of certain items shown in the report. Issues were joined by a reply to the objections filed by the executors. The matter was not tried by the county court until the 21st day of February, 1926, was taken under advisement by the court until the 19th of March following, whereupon the county court made the journal entry (under consideration here) with detailed findings of fact as to the contested items, and then concluded with an order relating to the estate. This order is particularly important in the consideration of the case now before us. The entire order portion in the journal entry last above referred to is as follows:

"It is therefore considered, ordered and adjudged that this estate be not closed until certain supplemental proceedings be had as follows, to wit: First, that the executors collect from Horace Marshall the sum of $ 247.00, and, if necessary, shall commence suit in the district court of Antelope county, Nebraska, to recover the same. Second, they shall upon ten days' notice, by posting five typewritten notices in the City of O'Neill, Nebraska, sell at public auction at O'Neill, Nebraska, the said Oakland Sedan and report the same to this court. Third, that they shall account for and pay into the estate's funds the sum of $ 44.25, costs in the district court proceedings; that subject to the above modifications the report of the executors is hereby approved; and this estate proceeding is continued to the 26th day of May, 1926, at 10 o'clock a. m. for further decree after receiving the supplemental report herein required of said executors."

It is not deemed advisable to discuss the particular items of the accounts of the executors which were revised by the district court because of the question of jurisdiction of the district court to hear the appeal from the county court. This question, if not raised by the motion to dismiss the appeal from the county court, was raised in the brief and argument of appellants here. This suggests a consideration of our statutes relating to reviews and final orders.

Section 1471, Comp. St. 1922, reads as follows: "In all matters of probate jurisdiction, appeals shall be allowed from any final order, judgment or decree of the county to the district court by any person against whom any such order, judgment or decree may be made or who may be affected thereby."

Section 9127, Comp. St. 1922, says: "A judgment rendered, or final order made, by a county court, justice of the peace or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court."

Section 9128 defines a final order in the following words: "An order affecting a substantial right in an action, when such order in effect...