In re Johnson’s Estate

• Decision Date: 13 August 1938
• Docket Number: 8156
• Citation: 66 S.D. 256,281 N.W. 113
• Parties: IN RE JOHN P. JOHNSON’S ESTATE LOVIS PETRONELLA EVANS and Anna Thompson, Respondents, v. JOSEPH ELLSWORTH JOHNSON, et al., and Joseph Elsworth and Enoch Emanuel Johnson, Executors of the Estate of John P. Johnson, deceased, Appellants.
• Court: South Dakota Supreme Court

66 S.D. 256

281 N.W. 113

IN RE JOHN P. JOHNSON’S ESTATE

LOVIS PETRONELLA EVANS and Anna Thompson, Respondents, v. JOSEPH ELLSWORTH JOHNSON, et al., and Joseph Elsworth and Enoch Emanuel Johnson, Executors of the Estate of John P. Johnson, deceased,

Appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. John T. Medin, Judge.

#8156—Motion granted in part

C.A. Christopherson Jr., B.O. Stordahl, Sioux Falls, SD

Attorneys for Appellants.

Caldwell & Burns, Sioux Falls, SD

Attorneys for Respondents.

Opinion Filed Aug 13, 1938

ROBERTS, Presiding Judge.

John P. Johnson, a resident of Minnehaha County, South Dakota, died in January, 1934, leaving a last will and testament. The will was admitted to probate, and Joseph Elsworth and Enoch Emanuel Johnson were appointed executors thereof. Decedent made a specific devise of land to each of his ten children. The real property devised was free and clear of encumbrances except a quarter section devised to his daughters, Lovis Petronella Evans and Anna Thompson. The county court decreed that it was the intention of the testator that the daughters should take the land specifically devised to them subject to the mortgage. From this decree of the county court the devisees named appealed to the circuit court and a new trial was had pursuant to such appeal.

The trial in the circuit court resulted in a judgment reversing the decree of the county court and determining that it was the intention of testator to devise the land in question free and clear of encumbrances and the executors were ordered to pay out of the general funds of the estate the mortgage indebtedness. Notice of intention to move for a new trial signed by the attorneys for the executors of the estate was served after the receipt of a letter of the trial judge discussing the issues and directing the preparation of findings and judgment in favor of the appellants in the circuit court, but before the entry of findings of fact and conclusions of law. The motion for new trial in the circuit court was made by and on behalf of the executors. Devisees and residuary legatees who were not parties to the record below and the executors served and filed in this court a notice of appeal from the judgment and order denying motion for new trial.

A motion to dismiss the appeal has been made by respondents. By this motion they contend that only parties to the record may prosecute an appeal to this Court. These so-called appellants did not seek to intervene or to appear before entry of judgment in the circuit court, nor did they afterwards move to set aside the judgment. The right of appeal is statutory and can be exercised only when and as authorized by statute. Woodbine Savings Bank v. Yager, 245 N.W. 917. An appeal from the circuit court to the supreme court may be taken by the “party aggrieved” from any judgment or appealable order. §§ 3144, 3145 Rev. Code 1919; see Cable v. Gold Mining Company, 119 N.W. 174.

It is thus apparent that no one can appeal from a judgment or order unless he was a party to the action or proceeding below. We do not infer that a person must have been an original party when the action or proceeding was commenced, but at some stage of the proceeding below he must have become a party. Counsel rely upon the provisions of section 3552 Rev. Code 1919, which provide that any person interested in the estate or funds affected by the decree or order who was not a party to the special proceeding in which it was made, but who was entitled by law to be heard, or who has acquired since the decree or order a right or interest that would entitle him to be heard if it had been previously acquired, may appeal. The facts which entitle such a person to appeal must be shown by an affidavit which must be filed with the notice of appeal. This statute has application to appeals from the county court to the circuit court and does not entitle these persons who were not parties below to appeal to the supreme court. As to them the motion must be granted.

Respondents ask us to dismiss the appeal as to the executors upon the ground that they are not parties aggrieved, citing section 3145, Rev. Code 1919, and relying upon the general rule that a personal representative may not secure...