In re Paige's Estate
| Decision Date | 16 June 1906 |
| Parties | In the Matter of the Estate of JOHN D. PAIGE, Deceased |
| Court | Idaho Supreme Court |
PROBATE OF WILL-ORDER REFUSING, APPEALABLE-NONAPPEALABLE ORDERS, HOW REVIEWED-RECORD OF APPEAL-MINUTES OF COURT-BILL OF EXCEPTIONS-UNDERTAKING ON APPEAL-SPECIFICATION OF GROUNDS OF MOTION-APPLICATION TO AMEND UNDERTAKING.
1. Under the provisions of section 4831, an order by the probate court refusing to admit a will to probate is appealable.
2. All interlocutory and nonappealable orders of the district court made prior to judgment may be reviewed on appeal from the judgment, provided they are properly presented by the record.
3. Under the provisions of section 4819, Revised Statutes, an appeal to the supreme court from the judgment of the district court rendered on an appeal from the probate court, the appellant must furnish this court with a copy of the notice of appeal, of the judgment or order appealed from, and of all papers used on the hearing in the court below, and the copies of such papers must be certified to be correct by the clerk or the attorneys.
4. Under the provisions of said section 4819, the minutes of the court are not required to be furnished to the appellate court, and to properly present such minutes, they should be preserved by bill of exceptions.
5. Where there is a motion to dismiss an appeal on the ground of defects in the undertaking, the motion should specify the particular defect complained of; but in case it does not, and is presented and argued by the respective counsel as though it were sufficient, the question of sufficiency of the specification cannot be raised for the first time in this court.
6. An application to amend an undertaking on appeal must be made before the motion to dismiss the appeal has been granted.
(Syllabus by the court.)
APPEAL from the District Court of the Third Judicial District for Ada County. Hon. George H. Stewart, Judge.
Proceedings for probate of will. Application denied. Sustained.
Judgment sustained, with costs in favor of the respondent.
Edwin Snow and Harry S. Kessler, for Appellants.
The notice of motion should specify with particularity the precise grounds upon which the moving party will base his right to the relief sought, and a noncompliance with this rule is a sufficient ground for denying the motion.
We admit the undertaking filed failed in one respect to comply with the statutory requirements. The sureties are not obligated to pay the costs "on a dismissal" of the appeals. Upon the authority of Jarman v. Rea, 129 Cal. 157, 61 P. 790. and Hill v. Cassidy, 24 Mont. 108, 60 P. 811, this omission, if a defect, renders the undertaking merely insufficient and not void. (Gray v. Amador Co., 61 Cal. 337; Spreckels v. Spreckels, 114 Cal. 60, 45 P. 1022; Spelling on New Trial and Appellate Practice, sec. 748.)
Where a challenge to the sufficiency of an undertaking on appeal is sustained by the supreme court, it will allow appellant to file a new undertaking without any cross-motion for leave to do so; and hence a motion for leave will not be denied because it was filed after a motion to dismiss for insufficient undertaking. (De Stafford v. Bartley, 15 Colo. 32, 24 P. 580; Hendricks & McBerney v. Mason, 70 Ga. 523; McDermed v. Judge, 122 Ga. 28, 49 S.E. 800; Elwert v. Norton, 34 Or. 567, 51 P. 1097, 59 P. 1118.)
Johnson & Johnson, for Respondent.
Objections not raised in the trial court will not be considered on appeal. (Smith v. Sterling, 1 Idaho (Prickett), 128; Goodman v. Mining Co., 1 Idaho 131; Heilner v. Brown, 2 Idaho (Hasb.), 263, 12 P. 903; Murray v. Nixon, 10 Idaho. 608, 79 P. 643; Watson v. Molden, 10 Idaho 570, 79 P. 503; Brady v. O'Brien, 23 Cal. 244; Wadleigh v. Phelps, 147 Cal. 541, 82 P. 200; Beckwith v. Talbot, 2 Colo. 604; Moline Plow Co. v. Updyke, 48 Kan. 410, 29 P. 575; Bishop v. Carter, 29 Iowa 165; Pick v. Glickman, 54 Ill.App. 646; Lancaster v. McDonald, 14 Or. 264, 12 P. 374; Gerheart Realty Co. v. Weiter, 108 Mo.App. 248, 83 S.W. 278; Wells v. St. Dizier, 9 La. Ann. 119.)
The undertaking given in this case was executed by only one surety, and was not conditioned that the appellant would pay all damages and costs which might be awarded against her on the dismissal of the appeal. (Duncan v. Times-Mirror Co., 109 Cal. 602, 42 P. 147; Estate of Fay, 126 Cal. 457, 58 P. 936; Duffy v. Greenbaum, 72 Cal. 157, 12 P. 74, 13 P. 323; Hill v. Cassady, 24 Mont. 111, 112, 60 P. 811.)
The question of sufficiency of the undertaking on appeal has not been properly brought before this court, for the reason that counsel, who was present when the motion was decided below, did not except to the decision of the court on the motion nor to the order denying leave to amend the undertaking, as required by section 4824 of the Revised Statutes. ( Purdum v. Taylor, 2 Idaho 167, 9 P. 607 and cases cited.)
The statute requires a bond with sufficient sureties; and a single surety does not answer its demands. (Van Wezel v. Van Wezel, 3 Paige, 38; North American Coal Co. v. Dyett, 4 Paige, 273; Beebe v. Young, 13 Mich. 220, 221; Harris v. Register, 70 Md. 109, 16 A. 386; Appeal of Bartlett, 82 Me. 210, 19 A. 170; Nichols v. MacLean, 98 N.Y. 458; Bennet v. Superior Court, 113 Cal. 440, 45 P. 808.)
The request by appellant, after the hearing of a motion to dismiss an appeal, to be allowed to substitute a sufficient appeal bond for a bond found insufficient, is too late, and will be refused. (Home & Loan Assn. v. Wilkins, 71 Cal. 626, 12 P. 799; McCormick v. Belvin, 96 Cal. 182, 31 P. 16; Bennet v. Superior Court, 113 Cal. 442, 45 P. 808; Zane v. De Onativia, 135 Cal. 440, 442, 67 P. 685; Hennessey v. Reed, 15 Colo. App. 56, 60 P. 955.)
The two orders described in appellants' notice of appeal are not appealable, as they are not included in section 4807, Revised Statutes.
The court below sustained plaintiff's motion to dismiss defendant's appeal from the probate court. This is not a final judgment nor a special order made after final judgment. (Durant v. Comegys, 3 Idaho 67, 35 Am. St. Rep. 267, 26 P. 755; Ah Kle v. McLean, 3 Idaho 70, 26 P. 937; Theissen v. Riggs, 5 Idaho 21, 46 P. 829; Connell v. Warren, 3 Idaho 117, 27 P. 730.)
The "order rejecting probate of will," the "notice of appeal" from the probate to the district court, and the "minutes of the court," are not part of the judgment-roll. (Rev. Stats. sec. 4456, subd. 2; Williams v. Boise Basin Min. & Development Co., 11 Idaho 233, 81 P. 646.)
This appeal is from an order and judgment dismissing an appeal from a judgment rendered by the probate court of Ada county, and from an order denying a motion for leave to amend the undertaking on appeal, from the probate court to the district court. The appellant filed in the probate court of Ada county her petition for the probate of the will of John D. Paige, deceased. A petition in opposition to the probate of said will was filed in said court; thereafter said matter came on to be heard, and after the hearing the probate court made an order that said will be not admitted to probate; thereafter the petitioner took an appeal therefrom to the district court and filed an undertaking on appeal; thereafter the respondent moved to dismiss such appeal on the ground that no undertaking on appeal had been filed, as required by law, and for the further reason that the order appealed from was not an appealable order. Said motion was sustained by the court and upon the announcement of the decision, counsel for the appellant moved the court for leave to amend her undertaking on appeal. Said motion was denied by the court. Thereafter judgment was entered dismissing the appeal. Two errors are assigned: (1) That the court erred in sustaining the motion to dismiss the appeal; (2) Erred in denying defendant's motion to amend her undertaking on appeal.
In limine, we are met with a motion to dismiss the appeals from the "two orders described in appellant's notice of appeal," on the ground that they are not appealable orders under the provisions of section 4807 of the Revised Statutes of 1887. That section provides from what orders and judgments an appeal may be taken from the district court to the supreme court, and neither of the orders mentioned in said notice of appeal are mentioned in said section. Under the provisions of section 4831 of the Revised Statutes, an appeal may be taken to the district court from a judgment or order of the probate court in probate matters, among other orders that of admitting or refusing to admit a will to probate. But the provisions of that section do not apply to appeals from the district...
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