Muhlhauser v. Becker

• Decision Date: 31 August 1945
• Docket Number: 6971.
• Citation: 20 N.W.2d 363,74 N.D. 35
• Court: North Dakota Supreme Court

20 N.W.2d 363

74 N.D. 35

MUHLHAUSER et al. v. BECKER et al.

No. 6971.

Supreme Court of North Dakota

August 31, 1945

Syllabus by the Court.

Where the county court assumes jurisdiction in a matter not within its jurisdiction and an appeal is taken by plaintiffs to the district court on the issue of such jurisdiction, it is error for the district court to uphold the action of the county court and to proceed to make an allowance to plaintiffs for administrator and counsel fees; and on cross appeal by defendants to review the judgment for such allowances such judgment should be reversed.

Sullivans, Fleck & Higgins, of Mandan, and Floyd B. Sperry, of Golden Valley, for appellants.

J. K. Murray, of Bismarck, for respondents and appellees, and appellants on cross-appeal.

BURR, Judge.

In the case of Muhlhauser et al. v. Becker and Gappert, known as case No. 6971, 20 N.W.2d 353, which came before the district court upon the appeal of the plaintiffs herein from the decree of the county court, taken solely on the ground that the county court had no jurisdiction to determine the issue involved in the claim of defendants to be entitled to the estate of Fredrick William Gappert, deceased, we have just decided that since the county court had no jurisdiction to hear and determine the issue presented to it, the district court on such appeal should have so determined and have reversed the decree of the county court without proceeding to determine the claim of the defendants to the estate involved.

The district court, however, having upheld the action of the county court, proceeded to determine the validity of the defendants' claim on the appeal to the district court, and, while finding in their favor and ordering judgment accordingly, allowed the plaintiffs herein the sum of $975 for attorneys' fees and $200 for administrator's fees to be paid out of the estate. From the portion of the judgment allowing such fees the defendants appeal.

In view of our decision in this case No. 6971 (q. v.) the district court should not have made such allowances. Accordingly the judgment appealed from is reversed.

CHRISTIANSON, C. J., and MORRIS, BURKE, and NUESSLE, JJ., concur.