In re Tuohy's Estate

• Citation: 23 Mont. 305
• Parties: In re TUOHY'S ESTATE.
• Decision Date: 26 October 1899
• Court: United States State Supreme Court of Montana

23 Mont. 305

In re TUOHY'S ESTATE.

Supreme Court of Montana.

Oct. 26, 1899.

Appeal from district court, Silver Bow county; John Lindsay, Judge.

Proceeding in the estate of James Tuohy, deceased. From an order directing Cyril Pauwelyn, executor, to execute a lease of certain realty, he appealed. One McSherry and another, who were made respondents, moved for a dismissal of the appeal. Dismissed.

Pemberton & Maury, for appellant.

W. I. Lippincott and D. Gay Stivers, for respondents.

PER CURIAM.

Motion to dismiss appeal. Cyril Pauwelyn, as executor of James Tuohy, deceased, seeks herein to have reviewed on appeal an order made by the district court of the Second judicial district, sitting as a court of probate, directing him to execute a lease of certain mining ground belonging to his testator's estate to C. J. McSherry and D. J. Ryan, at a fixed rental, for the term of two years. McSherry and Ryan, who are made the respondents, ask that the appeal be dismissed, on the ground, among others, that the order is not appealable.

An appeal is authorized by statute only, and, unless the judgment or order which it is sought to have reviewed in this mode falls fairly within the enumeration of appealable orders or judgments made by the statute, the appeal does not lie. Hayne, New Trial & App. § 181. Appeals from district courts in this regard are provided for in section 1722 of the Code of Civil Procedure, as amended by Sess. Laws 1899, p. 146. Under this section, we find three classes of judgments or orders from which appeals may be taken. Subdivision 1 includes all final judgments; subdivision 2 enumerates orders granting or refusing a new trial, orders made in extraordinary proceedings, interlocutory orders, and special orders after final judgment; subdivision 3 enumerates judgments or orders in probate proceedings. This section was copied into our Code substantially from the Code of California. Though appeals are provided for therein not recognized by the Code of that state, the theory of classification is the same in both Codes. In re Calahan's Estate, 60 Cal. 232. The case cited involved the question whether an appeal lies from an order vacating a decree of distribution. The court observes: “It is quite clear that the first and second classes embrace judgments and orders other than those made in probate proceedings, and that the third class embraces only such as are made in such proceedings.” The order was held to be nonappealable, because not enumerated among those declared in that class to be appealable. It was also held in that case that this order is not included in the second class, under the head of “any special order made after final judgment,” for the reason that the final judgment there mentioned refers to the judgment mentioned in the first class; that is, “a final judgment entered in an action or special proceeding commenced in a district court, or brought into a district court from another court.” In a later case (In re Smith's Estate, 98 Cal. 636, 33 Pac. 744), in considering the same statute, it was determined that the term “final judgment,” as used therein, “applies only to those judgments known at common law as ‘final judgments,’ and that as to the statutory determinations termed ‘orders or judgments,’ defined in the third subdivision, the term ‘final judgment’ does not apply.” Similar questions under this statute have been considered in the following cases by the same court: In re Walkerly's Estate, 94 Cal. 352, 29 Pac. 719;In re Dean's Estate, 62 Cal. 613;In re Moore's Estate, 86 Cal. 58, 24 Pac. 816;In re Wiard's Estate, 83 Cal. 619, 24 Pac. 45;In re Lutz's Estate, 67 Cal. 457, 8 Pac. 39;In re Bauquier's Estate, 88 Cal.302, 26 Pac. 178, 532. In this latter case it was held that an appeal from an order granting or denying a new trial lies under the provisions of the second subdivision, because this provision is made applicable to probate proceedings by a section of the title pertaining to probate procedure the same as is found in our Code Civ. Proc. § 2921. These cases furnish support for the rule, which seems entirely reasonable, that appeals from judgments or orders in probate proceedings are allowed only under the provisions of subdivision 3, except in the single case of an order granting or refusing a new trial, which may be taken under subdivision 2. as provided by section 2921, supra.

Counsel for the executor cite In re McFarland's Estate, 10 Mont. 446, 26 Pac. 185, and In re Higgins' Estate, 15 Mont. 475, 39 Pac. 506, in support of the position that the order appealed from is a final judgment in a special proceeding, and therefore appealable under the first subdivision of section 1722, supra. They call attention to the fact that similar orders were in these cases held to be final judgments, and appealable, under section 421 of first division of the Compiled Statutes. It is sufficient to say of these cases that the Compiled Statutes contained no provision similar to the one under consideration. Moreover, up to the admission of the territory into the Union as a state, we had special probate courts, and no appeal to this court lay directly from these courts. In re McFarland's Estate, supra. Orders and judgments made therein could be reviewed, in the first place, only in the district court. Upon the organization of the state government, probate jurisdiction was given to the district courts by the constitution (article 8, § 11; Schedule, § 4), and thereafter appeals to this court from judgments or orders in these proceedings were possible only by...