In re Estate of McKee
| Decision Date | 28 March 1939 |
| Docket Number | 6594 |
| Citation | 285 N.W. 72,69 N.D. 203 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. A party who voluntarily acquiesces in or recognizes the validity and propriety of a judgment, order or decree against him, or takes a position inconsistent with the right to appeal therefrom, thereby impliedly waives his right to have such judgment, order or decree reviewed by an appellate court.
2. In this case, an appeal was taken to the District Court from an order of the County Court dismissing a petition for contest of a will after probate; the District Court reversed the order of the County Court and the record was thereupon remanded to the County Court, and the County Court rendered a decree setting aside the probate and revoking the letters testamentary; the party adversely affected by the order of the District Court and the decree of the County Court thereupon applied to the County Court for a re-hearing, which application was denied. Thereafter such party took appeal to the Supreme Court from the order of the District Court. For reasons stated in the opinion it is held that such party has waived the right to appeal to the Supreme Court from the order of the District Court.
Appeal from District Court, Stutsman County; Englert, Judge.
Proceeding in the matter of the estate of Robert J. McKee, deceased wherein William McKee, Jr., and others were contestants, and wherein C. S. Buck, Jr., and others were proponents. From an adverse order of the district court on appeal from the county court, C. S. Buck, Jr., etc., and others appeal, applying for an order directing the county court of Stutsman county to return certain files and documents to the district court of Stutsman county, and further directing the judge of the district court of Stutsman county to order such files and documents to be transmitted to the Supreme Court as part of the record on appeal.
Application denied.
C S. Buck, Jr., for appellants.
A failure to supersede a judgment or to stay process upon it in no way affects the right of plaintiff in error to a review in the proceedings which resulted in it. 3 C.J. 1328; 8 Bancroft, Code Practice & Remedies, 8667; 3 C.J. 1271.
A motion for a new trial and the appeal from the judgment are each separate and independent remedies. McCann v Gilmore, 42 N.D. 119, 172 N.W. 236; Grove v. Morris, 31 N.D. 8, 151 N.W. 779.
Fredricks & Fredricks, for respondent.
When an appellate court renders a decision, and transmits its mandate to the court below, all jurisdiction of the appellate court is at an end. Re Satrang, 45 S.D. 271, 186 N.W. 967; Re Seydel, 14 S.D. 115, 84 N.W. 397; 3 Cyc. 477; Compton v. Brown, 56 N.Y. 623.
The supreme court may, under its constitutional power, exercise its original jurisdiction and superintending control over inferior courts, but this power may be used only when there exists no other legal remedy and to prevent a miscarriage of justice. State v. District Ct. 24 N.D. 28, 138 N.W. 988.
Where another plain and adequate legal remedy originally existed, which, due to inaction, has become lost, extraordinary remedies cannot be resorted to, because the legal remedy has been lost. Taubman v. Aurora County, 14 S.D. 206, 84 N.W. 784; Tyler v. Shea, 4 N.D. 377, 61 N.W. 468.
Appellants have applied to this court for an order directing the judge of the county court of Stutsman county, and the clerk of said court, to return to, and file in, the office of the clerk of the district court of Stutsman county a transcript of all documents used by the district court in the appeal from the said county court to the district court of Stutsman county in the above entitled matter, and further directing the judge of the district court of Stutsman county to order the said record so transmitted from the county court to be transmitted to, and filed in, the office of the clerk of the supreme court.
The appellees resisted the application for such order on the ground, among others, that the appellants have acquiesced in the order of the district court from which the appeal is taken and that they have waived the right to appeal from such order. For the sake of brevity, the appellants will be referred to in this opinion as Buck et al., and the appellees will be referred to as McKee et al.
The facts necessary to an understanding of the questions presented, and which in our opinion are determinative of this appeal, are as follows:
McKee et al. instituted a proceeding in the county court of Stutsman county under § 8649, Comp. Laws 1913, to contest a will after probate thereof.
Buck et al. interposed a general demurrer to the petition. The county court sustained the demurrer. McKee et al. appealed to the district court which affirmed the order of the county court.
Thereupon McKee et al. appealed to this court. This court held that the petition stated facts sufficient to constitute a cause of action for a contest of a will under said § 8649, supra, and reversed the order of the district court and remanded the case for further proceedings. Re McKee, 67 N.D. 504, 274 N.W. 601.
After remand the matter came on to be heard in the said county court on February 10th, 1938, and the county court made an order dismissing the proceeding to contest.
McKee et al. thereupon appealed to the district court. The matter was heard in the district court on October 20th, 1938, and the district court reversed the order of the county court by order dated and entered November 9th, 1938.
On November 12th, 1938, the cause and the record were remanded by the district court to the county court.
On November 16th, 1938, the county court entered an order and decree vacating the former probate of the last will and testament in controversy, and revoked the letters testamentary that had been issued, and further determined that the will in controversy is invalid and that same has not been proven to be the last will and testament of Robert J. McKee, deceased.
On November 22d, 1938, Buck et al. filed an application for a rehearing under § 8595, Comp. Laws 1913. Such application was argued before the county court on December 7th, 1938, and on December 31st, 1938, the county court entered an order denying the application for a rehearing. In such order, the county court held that it had power to entertain the petition for rehearing, but that upon the record no excusable mistake or neglect had been established within the meaning of the said § 8595, Comp. Laws 1913.
Thereafter on January 5th, 1939, Buck et...
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