Rusch v. N. & Dakota Trust Co. (In re Rusch's Estate)

• Decision Date: 25 March 1932
• Docket Number: No. 5981.,5981.
• Citation: 62 N.D. 138,241 N.W. 789
• Court: North Dakota Supreme Court
• Parties: In re RUSCH'S ESTATE. RUSCH v. NORTHERN & DAKOTA TRUST CO. et al.

62 N.D. 138

241 N.W. 789

In re RUSCH'S ESTATE.RUSCH

v.NORTHERN & DAKOTA TRUST CO. et al.

No. 5981.

Supreme Court of North Dakota.

March 25, 1932.

Syllabus by the Court.

1. An appeal does not lie to the Supreme Court from a judgment entered by a county court in a probate matter.

2. Where an appeal is taken to an appellate court from a decree of an inferior court whose decisions are not made subject to review by appeal in such appellate court, the appeal will be dismissed by the court on its own motion, whether the point is raised by the appellee or not.

Appeal from Cass County Court; Paulsen, Judge.

Proceeding by Harry F. Rusch for a declaratory judgment involving the construction of the will of Henry J. Rusch, deceased, opposed by the Northern & Dakota Trust Company and others. From the judgment entered in the county court, the petitioner appeals.

Appeal dismissed.

Conmy, Young & Conmy, of Fargo, for appellant.

Pierce, Tenneson, Cupler & Stanbaugh, of Fargo, for respondents.

PER CURIAM.

This is an appeal from a declaratory judgment entered in the county court of Cass county. The proceeding was instituted by the filing of a petition for the construction of the will of Henry J. Rusch, deceased. In response to the issues framed by the petition, answer, and reply, a declaratory judgment was entered on June 1, 1931. Notice of appeal from that judgment by the petitioner to this court was served on June 18, 1931. Thereafter the record was transmitted to this court, and after some delay the appeal was submitted on briefs without oral argument, counsel for the respondents joining in the submission of the matter on its merits. Under the Uniform Declaratory Judgments Act, courts of record within their respective jurisdictions are declared to have the power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed, and such declarations are given the force and effect of a final judgment or decree. Section 7712a1, Supplement to the Compiled Laws of 1913. Any person interested under a will or whose rights or legal relations are affected by a statute may obtain a declaration of his rights or other legal relations (section 7712a2), and any person interested through an executor or trustee may have a declaration of his rights or legal relations to determine any question arising in the administration of the estate or trust, including questions of the construction of wills (section 7712a4). The act provides for review as follows (section 7712a7, Supplement to the Compiled Laws of 1913): “All orders, judgments and decrees under this act may be reviewed as other orders, judgments and decrees.” The petition in the instant case invokes the probate jurisdiction of the county court for the purpose of obtaining a declaratory judgment construing the will, to determine the existence and validity of a purported trust. Assuming the judgment or decree entered to “have the force and effect of a final judgment or decree,” it is reviewable in the manner stated in section 7712a7 above.

Under section 8599, Compiled Laws of 1913, any party aggrieved by a decree or order affecting a substantial right made by a county court is given the right to appeal to the district court of the same county. But see, as to adoption proceedings, In re Mair (N. D.) 237 N. W. 756. All appeals from decrees of county courts in the exercise of their probate jurisdiction must be taken under this statute to the district court, the Supreme Court not being vested with immediate appellate jurisdiction in such matters. The only appeals that lie from the county court to this court are appeals in actions brought under the provisions of the chapter governing the increased jurisdiction of county courts. Chapter 9 of the Probate Code, sections 8929 to 8975, inclusive (section 8960, Compiled Laws of 1913). The declaratory judgment in the instant case, not having been entered in the exercise of the increased jurisdiction of the county court, is not appealable directly to this court under section 8960 of the Compiled Laws of 1913. The matter can come here on appeal only when it is determined by the judgment of a district court and is appealed under section 7818, Compiled Laws of 1913. It is a well-settled rule of appellate practice that, where the appellant has no right of appeal in the given case, the appeal will not be entertained, but “the court will dismiss the appeal on its own motion, whether the point is raised by counsel for the appellee or not.” 2 Ency. Pl. & Pr., 338, 339; 4 C. J. 589-592; Kennelly v. Northern Pac. Ry. Co., 41 N. D. 395, 170 N. W. 868. See, also, In re Mair, supra; Stratton v. St. Louis Southwestern Ry. Co., 282 U. S. 10, 51 S. Ct. 8, 75 L. Ed. 135.

[1][2] In view of the fact that the declaratory judgment of the county court has become final by reason of no appeal having been taken therefrom to the district court within the time provided by statute (section 8601, Compiled Laws of 1913), and of the further fact that the subject matter falls within the appellate jurisdiction of the district court and, in turn, of this court on appeal from the district court, two members of this court, Judges BIRDZELL and BURR, are of the opinion that, in the absence of a motion to dismiss, the court should not dismiss on its own motion. In their opinion the judgment might be reviewable by this court on writ of error to the county court, under sections 7849a1 and 7849a2, Supplement to the Compiled Laws of 1913. They are aware, of course, that rules have not been prescribed for the issuance of writs of error, but nevertheless it is their view that the common-law principles governing this remedy for the review of judgments of inferior courts are sufficiently definite that the failure to prescribe rules under which the remedy may be available does not absolutely preclude its use, and the declaration that the authority to give it shall be in addition to the provisions of law applicable to appeals is a sufficient indication of...