McKee v. Buck (In re McKee's Estate), 6594.

• Citation: 69 N.D. 203,285 N.W. 72
• Decision Date: 28 March 1939
• Docket Number: No. 6594.,6594.
• Parties: In re McKEE'S ESTATE. McKEE et al. v. BUCK et al.
• Court: United States State Supreme Court of North Dakota

69 N.D. 203
285 N.W. 72

In re McKEE'S ESTATE.
McKEE et al.
v.
BUCK et al.

No. 6594.

Supreme Court of North Dakota.

March 28, 1939.

Syllabus by the Court.

1. A party who voluntarily acquiesces in or recognizes the validity and propriety of a judgment, order or decree against him, or takes a position inconsistent with the right to appeal therefrom, thereby impliedly waives his right to have such judgment, order or decree reviewed by an appellate court.

2. In this case, an appeal was taken to the District Court from an order of the County Court dismissing a petition for contest of a will after probate; the District Court reversed the order of the County Court and the record was thereupon remanded to the County Court, and the County Court rendered a decree setting aside the probate and revoking the letters testamentary; the party adversely affected by the order of the District Court and the decree of the County Court thereupon applied to the County Court for a re-hearing, which application was denied. Thereafter such party took appeal to the Supreme Court from the order of the District Court. For reasons stated in the opinion it is held that such party has waived the right to appeal to the Supreme Court from the order of the District Court.

Appeal from District Court, Stutsman County; Englert, Judge.

Proceeding in the matter of the estate of Robert J. McKee, deceased, wherein William McKee, Jr., and others were contestants, and wherein C. S. Buck, Jr., and others were proponents. From an adverse order of the district court on appeal from the county court, C. S. Buck, Jr., etc., and others appeal, applying for an order directing the county court of Stutsman county to return certain files and documents to the district court of Stutsman county, and further directing the judge of the district court of Stutsman county to order such files and documents to be transmitted to the Supreme Court as part of the record on appeal.

Application denied.

C. S. Buck, Jr., of Jamestown, for the motion.

Fredricks & Fredricks, of Jamestown, opposed.

PER CURIAM.

Appellants have applied to this Court for an order directing the Judge of the County Court of Stutsman County, and the Clerk of said court, to return to, and file in, the office of the Clerk of the District Court of Stutsman County a transcript of all documents used by the District Court in the appeal from the said County Court to the District Court of Stutsman County in the above entitled matter, and further directing the Judge of the District Court of Stutsman County to order the said record so transmitted from the County Court to be transmitted to, and filed in, the office of the Clerk of the Supreme Court.

The appellees resisted the application for such order on the ground, among others, that the appellants have acquiesced in the order of the District Court from which the appeal is taken and that they have waived the right to appeal from such order. For the sake of brevity, the appellants will be referred to in this opinion as Buck et al., and the appellees will be referred to as McKee et al.

The facts necessary to an understanding of the questions presented, and which in our opinion are determinative of this appeal, are as follows:

McKee et al. instituted a proceeding in the County Court of Stutsman County under Section 8649, C.L.1913, to contest a will after probate thereof.

Buck et al. interposed a general demurrer to the petition. The County Court sustained the demurrer. McKee et al. appealed to the District Court which affirmed the order of the...