In re Mcgannon's Estate

• Citation: 150 P. 1109,1915 OK 492,50 Okla. 288
• Decision Date: 22 June 1915
• Docket Number: Case Number: 4562
• Parties: In re McGANNON'S ESTATE.
• Court: Oklahoma Supreme Court

1915 OK 492

150 P. 1109

50 Okla. 288

In re McGANNON'S ESTATE.

Case Number: 4562

Supreme Court of Oklahoma

Decided: June 22, 1915

Syllabus

¶0 1. APPEAL AND ERROR--Overruling of Motion for New Trial--Failure to Assign as Error. Where the plaintiff in error fails to assign as error the overruling of a motion for a new trial in the petition in error, no question is properly presented to this court to review errors alleged to have occurred during the progress of the trial.

2. EXECUTORS AND ADMINISTRATORS--Expenditures--Attorney's Fees--"Debt of Estate." The fees of an attorney, employed by a personal representative of a decedent in the business of the estate, are not strictly debts of the estate, but if such services are necessary and the charges reasonable, for work actually done, they are proper credits to be allowed in the settlement of the accounts of the personal representative.

3. SAME--Allowance of Accounts--Review. In such case, where the question of necessity and reasonableness of such fees is tried in the district court on appeal from an order of the county court allowing them, and on the hearing in the district court evidence is introduced, and the district court refuses to allow them, this court cannot review the judgment of the district court, in the absence of an assignment of error for overruling the motion for new trial.

4. SAME--Exceptions. Where, in an account filed by an administrator in the county court in 1909, certain credits are claimed by the administrator, but it nowhere appears in the record on appeal to this court that the county court has ever approved such account, persons interested in the estate are not estopped from excepting to any item in such account at a future accounting by the administrator.

5. SAME--Account--Disallowance of Claims--Discretion of Trial Court. Where two credits for commissions are claimed by an administrator, one for $ 9,449.02, embraced in an account filed in the county court in 1909, but never approved by that court, and the other for $ 310.54, for commissions claimed to have been earned since that time, held, that the administrator is entitled to commissions on that part of the estate fully administered, but that as regards the item of $ 310.54, in the absence of an assignment of error in overruling the motion for a new trial, this court cannot review the error, if any was committed, as the court may have proceeded on the theory that the estate was not fully administered. Held, further, in regard to the item of $ 9,449.02, that as the court did not adjudge that the administrator was nor entitled to these commissions, or that the amount was too large, but leaves the question open until a future settlement, such action is not an abuse of discretion and will not be reversed.

Dillard & Blake and Virgil Rule, for plaintiff in error.

Biddison & Campbell, for defendant in error.

DEVEREUX, C.

¶1 It will be noticed that the overruling of the motion for a new trial is not assigned as error, and the question arises in its absence, What is left for us to pass on in this case? In considering this question, it will be borne in mind that on appeal to the district court from the county court in probate proceedings, the trial is de novo, and is to be conducted in the same manner as if the case and proceedings had originated in the district court, and the district court has the same power to decide questions of fact that the county court had. Williams' Constitution of Oklahoma, sec. 201 (article 7, sec. 16); Rev. Laws 1910, sec. 6515. On such appeal, however, the issues must remain the same as those tried in the county court, as the jurisdiction of the district court is only appellate, and no new issues can be injected into the case in the district court. Parker v. Lewis, 45 Okla. 807, 147 P. 310. As above stated, the overruling of the motion for a new trial has not been assigned as error in this court, and this raises the question as to which of the assignments of error above set out we can consider. In Douglas Co. v. Sparks, 7 Okla. 259, 54 P. 467, it is said:

Although "a motion for a new trial be filed in the court below upon grounds for which a new trial may be granted and the motion be overruled, the Supreme Court will not consider these grounds unless, in the petition in error, the overruling of the motion for a new trial is assigned as error."

¶2 In Beall v. Mutual Life Ins. Co., 7 Okla. 285, 54 P. 474, it is held:

"Where the appellant fails to assign as error the overruling of a motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below."

¶3 In Martin v. Gassert, 17 Okla. 177, 87 P. 586, it is held:

"All questions assigned in the petition in error in this case for the consideration of this case, and argued in the brief of counsel for plaintiff in error as grounds for reversal, must have been, in order to be properly assignable here, set up and urged in a motion for a new trial. When the motion for new trial was overruled, this should have been assigned as error in their petition in error. Now the petition in error makes six assignments of error, but none of these assignments of error are on the ground that the court erred in overruling the motion for a new trial. This we think is a necessary assignment of error. We think, under the holdings of this court, that it is not only necessary that the grounds for reversal should have been set up in the motion for a new trial, but when the motion for new trial is overruled, that that should be assigned as error, and that this is a necessary assignment of error before this court can consider errors occurring during the trial."

¶4 And the same point is decided in Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865. In Kimbriel v. Montgomery, 28 Okla. 743, 115 P. 1013, it is held:

"As the overruling of defendant's motion for a new trial is not assigned as error in the petition in error, the only error therein assigned which we can review is that the court erred in sustaining said demurrer."

¶5 In Meyer v. James, 29 Okla. 7, 115 P. 1016, it is held:

"Where appellant fails to assign in his petition in error, as error, the overruling of a motion for a new trial, no question that seeks to have reviewed errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court, and such cannot be reviewed."

¶6 And the same point is decided in St. L., I. M. & S. Ry. Co. v. Dyer, 36 Okla. 112, 128 P. 265.

In Turner v. First National Bank, 40 Okla. 498, 139 P. 703, where the petition in error failed to assign the overruling of the motion for a new trial as error, the court say:

"The only question properly raised by the petition in error is that presented by the first assignment of error, Does the petition state a cause of action?"

¶7 And see, also, Adams v. Norton, 41 Okla. 497, 139 P. 254. We will now apply the principle declared by the above cases to the assignments of error which are set out in the petition in error. The first assignment is that the court erred in sustaining exception No. 1 of the exceptions because the charge therein contained was a fair, reasonable, and legitimate charge, and because the report of the administratrix had been allowed by order of the county court on the 26th day of November, 1909, and was not excepted to within the time provided by law. Plaintiff in error in the brief attacks the ruling of the court on the ground that it was without jurisdiction, because these items were allowed by the county court in the settlement of November, 1909, which has become final, as it was not excepted to within the time allowed by law. Whatever force there might be in this argument, if there was a judgment of the county court rendered on notice required by law in 1909, the question is not presented to us, because, after a careful examination of the entire record, we cannot find that the county court has ever approved this settlement or made any order in regard thereto. There is no order of the county court in the record showing any approval of the settlement of 1909, and, as far as this record shows, by which, of course, we are governed, this account of 1909 had never been passed on by the county court. The authorities, therefore, cited in the brief of the plaintiff in error, to show that the judgment of the county court, unappealed from, upon an intermediate settlement, is binding, have no application, for in every one of the cases cited there had been a settlement approved by the proper court. The plaintiff in error also relies upon the case of Holmes v. Holmes, 27 Okla. 140, 111 P. 220, 30 L. R. A. (N. S.) 920, but this case is not in point. In that case the order of the county court in question was attached to the answer as an exhibit, and the only question before the court was whether it was necessary that this order should show jurisdictional facts, this court holding that it need not. This case does not decide that the order of the county court is not necessary in order to make the judgment res adjudicata, nor does it decide that notice is not necessary prior to the allowing of such account, but only that it is not necessary that the judgment of the county court should show on its face the jurisdictional facts that notice had been properly given. This disposes of the ruling of the court on exceptions numbered 1, 2, 6, and 7. If, in passing on any of these exceptions, the court erred as to the reasonableness of the charge, this is clearly an error of law occurring at the trial, which we cannot review in the absence of an assignment of error for the overruling of the motion for a new trial. And what we have decided also disposes of the second, fourth, and fifth assignments of error. The sixth assignment of error is that the court erred in sustaining exception No. 9, filed to the report. This exception was for the allowance of $ 130.06, traveling...