In re Estate of Berg

• Decision Date: 21 February 1941
• Docket Number: 30919
• Citation: 296 N.W. 460,139 Neb. 99
• Parties: IN RE ESTATE OF OLLIE E. BERG. v. EINAR BERG, APPELLEE GERTRUDE BERG, APPELLANT,
• Court: Nebraska Supreme Court

296 N.W. 460

139 Neb. 99

IN RE ESTATE OF OLLIE E. BERG.

GERTRUDE BERG, APPELLANT, v. EINAR BERG, APPELLEE

No. 30919

Supreme Court of Nebraska

February 21, 1941

APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. Section 20-1903, Comp.St.1929 (Rev. St.1913, sec. 8177) held to have been legally enacted on the adoption of Revised Statutes 1913, and to provide effective procedure by " petition in error" to secure a review by the district court of a final order made by the county court in the exercise of probate jurisdiction.

2. Remedy provided by section 30-1601 et seq. Comp.St.1929, by appeal to the district court from final orders made by the county court in the exercise of probate jurisdiction, held not exclusive.

3. All parties interested in a matter heard before the county court in the exercise of probate jurisdiction, who may be affected by the modification or reversal of a final order of said court, must be made parties in a proceeding to review said matter by error proceeding in the district court.

Appeal from District Court, Douglas County; Leslie, Judge.

Proceeding in the matter of the estate of Ollie E. Berg, deceased, wherein Gertrude Berg, deceased's widow, filed in the District Court her petition in error under the provisions of section 20-1903, Comp. St.1929, against Einar Berg. From a judgment dismissing the error proceeding, Gertrude Berg appeals.

Affirmed.

Dorsey & Baldrige, for appellant.

Reed, Ramacciotti, Robinson & Hruska, contra.

Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE and MESSMORE, JJ., and ELDRED, District Judge.

OPINION

ELDRED, District Judge.

Ollie E. Berg died July 27, 1937, leaving a will which was admitted to probate. He left surviving his widow, Gertrude Berg, appellant herein, but no children. Certain provisions were made by the will for the widow of the deceased, a number of comparatively small bequests were made to other parties not involved herein, but the larger portion of the estate was left to Einar Berg, a nephew, appellee herein, including a store operated by decedent under the trade-name of Berg Clothing Company, together with the bank account connected therewith. The estate involved property of more than $ 300,000 in value. The appellant, Gertrude Berg, the widow, filed her election to take under the statute rather than under the will. The store was operated by the executor, the Omaha National Bank, under the order of the court, pending the settlement of the estate and until it was closed by the final decree February 28, 1939; and a net profit of $ 14,490.31 was realized therefrom during that period, said sum being the only item involved in this proceeding.

The county court, by its final decree, found that Einar Berg, appellee, was entitled to all of such profits and ordered that the same be paid to him by the executor, the Omaha National Bank. The widow, Gertrude Berg, appellant, claims that she is entitled to one-half thereof. March 8, 1939, after the rendition of the final decree, Gertrude Berg asked the county court to fix the amount of the appeal bond as provided by statute (Comp. St. 1929, sec. 30-1603) and the amount of such bond was fixed by the county court on the 9th day of March, 1939. No appeal bond was given within the 30 days provided by the statute above cited, or at any time.

On the 15th day of March, 1939, Gertrude Berg, as plaintiff in error, filed in the district court for Douglas county her petition in error under the provisions of section 20-1903, Comp. St. 1929, against Einar Berg, defendant in error, from the final order made February 28, 1939, by the county court of Douglass county, in the matter of the estate of Ollie E. Berg, deceased. The executor of the will of Ollie E. Berg was not made a party to said error proceedings; nor was any one made a party defendant in error other than Einar Berg. On the 19th day of June, 1939, Einar Berg filed in the district court motion to dismiss such error proceedings for lack of necessary parties thereto, and on the same day filed a special appearance objecting to the jurisdiction of the court over the subject-matter and his person. November 13, 1939, the district court sustained the special appearance of Einar Berg and motion to dismiss the error proceedings for the reasons: (1) That the only method to review a county court's final decree in estate matters is by appeal as provided by sections 30-1601 to 30-1607, Comp. St. 1929, and Gertrude Berg did not take proper steps in accordance therewith; and (2) there is a lack of necessary parties or party in the proceedings brought by her, for which reasons she is not entitled to a review of the county court's order.

From the judgment of the district court Gertrude Berg has appealed.

While some other questions are raised and discussed in briefs of counsel, consisting of more than 200 pages, the only assignments of error in appellant's brief are:

"(1) The court below erred in holding that appellant, in order to obtain a review by the district court of the order of the county court in question, was required to proceed in accordance with sections 30-1601 to 30-1607, Comp. St. 1929, rather than under the provisions of sections 20-1901 to 20-1908, Comp. St. 1929, in conformity with which her proceedings in the court below were prosecuted.

"(2) The court below erred in holding that there was any lack of necessary parties or party in the proceedings instituted and prosecuted by appellant."

If it should be determined that the action of the trial court may be sustained on either of the grounds set forth in its findings and order of dismissal, its decision should be affirmed.

It is not contended that appellant made any attempt to secure a review of the judgment of the county court by appeal under the provisions of article 16, ch. 30, Comp. St. 1929, other than to have the amount of an appeal bond fixed by the county judge. But it is contended that, notwithstanding the enactment of the statute providing for appeals from final orders of the county court in probate matters (Comp. St. 1929, secs. 30-1601 et seq.), the jurisdiction of the district court to review such orders by proceedings in error (Comp. St. 1929, secs. 20-1901 to 20-1904) remains unimpaired; that proceedings under last designated statute are available when supersedes is not required or desired.

Appellant cites Rogers v. Redick, 10 Neb. 332, 6 N.W. 413 (decided 1880). It is there held that an order of county court may be reviewed on error in the district court. But, in 1905 section 584 of the Civil Code (being same as present section 20-1903, Comp. St. 1929), providing procedure for review by petition in error, was repealed (Laws 1905, ch. 174). Appellant further cites Engles v. Morgenstern (1909) 85 Neb. 51, 122 N.W. 688. While that was not a case arising within the probate jurisdiction of the county court, but a civil suit for money judgment, instituted before a justice of the peace, the court considered the section involved herein and in paragraph 2 of the syllabus states:

"The right to review final orders of justices of the peace and other inferior tribunals still exists, notwithstanding the repeal of section 584 of the Code. "

It further states in the opinion: "This section covered the proceedings both in the district and supreme courts, and provided for the filing of a petition in error. When in 1905 the change was made by which all civil cases brought for review to the supreme court must thereafter be brought in the form of appeals, and the formal 'petition in error' was abolished in that court, the legislature evidently over-looked the fact that in this section was also embraced the manner of procedure applicable to proceedings in error brought to the district court. That this was an oversight is clear, for in no other respect was the right of review by error interfered with. See sections 599, 600 and 601 of the Code. Indeed, it is a matter of legislative history that at its next session an act was passed to remedy the defect, but was vetoed by the governor during the closing rush. The right of review upon error exists now as it always has in this state since the adoption of the Code, although the special form of procedure provided by section 584 has been abrogated."

In the case of In re Hilton (1916) 99 Neb. 387, 156 N.W. 659, the question as to the right to maintain an error proceeding from a final order of the county court in the exercise of probate jurisdiction was directly involved, and the opinion refers to Engles v. Morgenstern, supra, and states:

"The fair import of that decision is that an error proceeding is available for the review of a final order of the county court, made in the exercise of probate jurisdiction, notwithstanding the repeal of section 584 of the Code."

But no further consideration appears to have been given therein to that question.

In view of these holdings it would seem that this court, while recognizing that section 584, Civil Code, was repealed, has held that right of review upon error still exists, although the special form of procedure specified in said section was abrogated. The question now presented is: Was said section reenacted when it was included as section 8177, Rev. St. 1913 (Comp. St. 1929, sec. 20-1903)?

It is urged that, by including section 584 of Code in Revised Statutes 1913 as section 8177, that section was reenacted on the adoption of the report of the commission appointed to revise the statute. The statutory revision was authorized by chapter 166, Laws 1911. That act authorizes the commission to "bring together all statutes and parts of statutes relating to the same subject-matter, omitting absolute or repealed matter * * * but such...