Kruzick v. Pelkey

• Decision Date: 06 May 1963
• Docket Number: No. 1,No. 19760,19760,1
• Citation: 134 Ind.App. 569,190 N.E.2d 201
• Parties: John KRUZICK, Appellant, v. Harry L. PELKEY, Administrator de bonis non of the Estate of Agnes Eyke Kruzick, deceased, Appellee
• Court: Indiana Appellate Court

Page 201

190 N.E.2d 201

134 Ind.App. 569

John KRUZICK, Appellant, v. Harry L. PELKEY, Administrator de bonis non of the Estate of Agnes Eyke Kruzick, deceased, Appellee.

No. 19760.

Appellate Court of Indiana, Division No. 1.

May 6, 1963.

Thomas Essex, Winamac, for appellant.

Nichols & Nichols, Knox, Stevens & Wampler, Plymouth, for appellee.

CLEMENTS, Judge.

This is an appeal from the Starke Circuit Court. John Kruzick, the appellant, was the original administrator of his deceased wife's estate. She died intestate. Appellant filed a report and resignation in the Starke Circuit Court. An exception thereto was filed by Charles Pelkey, one of the heirs, and the court, after hearing, entered its special findings of fact and conclusions of law upon which judgment was entered ordering appellant to file an amended report incorporating therein all items previously incorporated in his report theretofore filed, and incorporating in addition thereto two promissory notes, to-wit: a promissory note executed by John Kruzick, together with his brother, George Kruzick, on October 21, 1939, in the principal sum of $5,000, plus interest; and a promissory note executed by John Kruzick on March 17, 1939, in the principal sum of $6,000, plus interest.

Appellant filed a motion for a new trial in which he asserted that the decision of the trial court is not sustained by sufficient evidence and is contrary to law, and objects to the trial court's findings as to the two promissory notes asserting that they are the subjects of civil actions pending in the Jasper Circuit Court. From the overruling of appellant's motion for a new trial this appeal is prosecuted.

The assigned errors are the overruling of appellant's motion for a new trial; the overruling of appellant's motion to dismiss objections; and the overruling of appellant's petition to submit additional evidence.

The question presented by the record before us is whether or not appellant has a right of appeal to this court from an order directing him to amend his report.

The Indiana Probate Code contains a provision in § 6-122, Burns' 1953 Replacement, which provides as follows:

'Any person considering himself aggrieved by any decision of a court having probate jurisdiction in proceedings under this code may prosecute an appeal to the court having jurisdiction of such appeal. Such appeal shall be taken as appeals are taken in civil causes. Executors, administrators, guardians and fiduciaries may have a stay of proceedings without bond.' (Our italics.)

In Stout v. Stout, Admr. (1918), 68 Ind.App. 278, 114 N.E. 473, 131 N.E. 245, this court had before it an appeal from a judgment of the Wells Circuit Court which ordered and adjudged that the administrator shall make and file an amended report, and this court there held that this is not a final judgment within the meaning of the statute.

In re Moss's Estate v. Lewis (1938), 104 Ind.App. 567, 12 N.E.2d 373, where the trial court had sustained exceptions to a final report of an administrator, this court held that the order appealed from was not a final...