Nelson v. Chadwick (In re Glavkee's Estate)

• Decision Date: 08 February 1947
• Docket Number: No. 7012.,7012.
• Citation: 75 N.D. 118,25 N.W.2d 925
• Parties: In re GLAVKEE'S ESTATE. NELSON et al. v. CHADWICK et al.
• Court: North Dakota Supreme Court

75 N.D. 118

25 N.W.2d 925

In re GLAVKEE'S ESTATE.NELSON et al.

v.CHADWICK et al.

No. 7012.

Supreme Court of North Dakota.

Feb. 8, 1947.

Appeal from District Court, Grant County; Broderick, Judge.

Proceeding in the matter of the estate of James Glavkee, deceased, wherein the last will and testament of James Glavkee was admitted to probate and final decree of distribution was entered in the county court. Glen Nelson and others appealed from the decree of distribution to the district court. From an order of the district court directing that the cause be remanded to the county court to permit John H. Hanson and others to introduce additional evidence, Glen Nelson and others appeal.

Appeal dismissed.

Syllabus by the Court.

An order made by the district court in an appeal ‘taken generally’ from a final decree of distribution remanding the record on the appeal to the county court for the purpose of permitting additional evidence to be introduced and permitting the county court to receive and file a deed referred to in the last will and testament does not involve the merits of an action or some part thereof so as to render such order appealable under subdivision 5 of Section 28-2702, N.D.R.C.1943.

Murray & Murray, of Bismarck, for appellants.

Emil Giese, of Carson, Hanley & Hanley and Thorstein Hyland, all of Mandan, for respondents.

PER CURIAM.

The last will and testament of James Glavkee was admitted to probate in the County Court of Grant County and final decree of distribution was entered in such court on the 17th day of March, 1945. Thereupon the respondents, Glen Nelson, James Nelson, Clarence Nelson and Marion Olson, appealed from the said decree of distribution to the District Court of Grant County on questions of law and fact and demanded a trial anew in the district court. N.D.R.C.1943, Sec. 30-2623.

The matter came on for trial in the district court pursuant to the appeal and evidence was adduced. The court took the cause under advisement and while it was being considered by the court, John H. Hanson, Christ Glavkee, Carl Glavkee and Evelyn Westling, appellees on the appeal from the county court, moved that the record be remanded to the county court for the introduction of further evidence, to-wit: a certain deed. Such motion came on to be heard pursuant to notice and the trial court made an order that the record be remanded to the county court for the purpose of permitting said court to receive and file and probate a certain deed as a part of the last will and testament of James Glavkee, deceased.

Glen Nelson, James Nelson, Clarence Nelson and Marion Olson, appellants on the appeal from the county court, have appealed from the order of the district court directing that the above-entitled cause be remanded to the county court for the purpose of permitting the appellees to introduce additional evidence and to permit the county court to receive and file and probate a deed as a part of the last will and testament of James Glavkee, deceased.

The appellees have moved that the appeal be dismissed on the ground that the order of the district court is nonappealable.

The right to appeal from an interlocutory order is statutory. It exists in such cases, and in such cases only, as are prescribed by law. Ellingson v. Northwestern Jobbers Credit Bureau, 58 N.D. 754, 227 N.W. 360;Burdick v. Mann, 59 N.D. 611, 231 N.W. 545.

Under the laws of this state an appeal lies to the Supreme Court only from the following orders made by the district court:

‘1. An order affecting a substantial right made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken;

‘2. A final order affecting a substantial right made in special proceedings or upon a summary application in an action after judgment;

‘3. An order which grants, refuses, continues, or modifies a provisional remedy, or grants, refuses, modifies, or dissolves an injunction or refuses to modify or dissolve an injunction, whether such injunction was issued in an action or special proceeding or pursuant to the provisions of section 35-2204, or which sets aside or dismisses a writ of attachment for irregularity;

‘4. An order which grants or refuses a new trial or which sustains a demurrer;

‘5. An order which involves the merits of an action or some part thereof;

‘6. An order for judgment on application therefor on account of the frivolousness of a demurrer, answer, or reply; or

‘7. An order made by the district court or judge thereof without notice is not appealable, but an order made by the district court after a hearing is had upon notice which vacates or refuses to set aside an order previously made without notice may be appealed to the supreme court when by the provisions of this chapter an appeal might have been taken from such order so made without notice, had the same been...