Williams v. Miles

• Decision Date: 19 February 1902
• Parties: WILLIAMS ET AL. v. MILES ET AL.
• Court: Nebraska Supreme Court

63 Neb. 859

89 N.W. 451

WILLIAMS ET AL.

v.MILES ET AL.

Supreme Court of Nebraska.

Feb. 19, 1902.

Syllabus by the Court.

1. The district court has no original jurisdiction to set aside a will, or the probate of the same. Loosemore v. Smith, 11 N. W. 493, 12 Neb. 343.

2. County courts of the state, which are by the constitution and laws given exclusive original jurisdiction in all matters of probate, settlements of estates of deceased persons, etc., have the power and authority, with respect to the subjects mentioned, to try and determine actions of an equitable character, and grant equitable relief, when proper, to the same extent as a district court regarding other subjects in the exercise of its general equitable jurisdiction.

3. An action, founded on general equitable principles, brought for the purpose of vacating an order admitting a will to probate, and for leave to present and have probated an alleged posterior will, and for other equitable relief, is properly begun in the county court, which has original jurisdiction over the subject-matter.

4. Action in the case at bar held to be equitable in its nature, as contradistinguished from a law action, and therefore appealable, by virtue of the provisions of section 675, Code Civ. Proc.

Appeal from district court, Richardson county; Thompson, Judge.

Action by Joseph Williams and others against Joseph H. Miles and others. Judgment for defendants. From the judgment, plaintiff and Samuel A. Miles, defendant, appeal. Motion to dismiss overruled.

J. H. Broady, A. J. Weaver, and Jno. L. Webster, for appellants.

F. Martin, E. Falloon, and C. Gillespie, for appellees.

HOLCOMB, J.

This action comes to this court from the district court by appeal, as distinguished from proceedings in error. The appellees have filed a motion to dismiss the appeal for the reasons: First, that said action is not appealable; and, second, that this court has no jurisdiction of the action on appeal. The litigation grows out of a controversy over the devolution of the property of one Stephen B. Miles, deceased. After the death of the decedent, an instrument purporting to be his last will and testament was duly presented for allowance and probate to the county court of Richardson county; and after the usual proceedings had in such cases, and conformation with the requirements of the decedent act, the will was regularly admitted to probate in the manner required by law. Some time subsequent thereto, and after the time allowed by law for an appeal from the order of probate to be taken had elapsed, the appellants, as plaintiffs, filed in the county court in which the will had been probated a petition, with the object and for the purpose of having the order probating such will vacated and set aside, and leave given to present for probate an alleged later will executed by the decedent, and for proper orders for the conservation of the estate pending the litigation, and for general equitable relief. Process was issued and served, the parties appearing in response thereto; and after joinder of issues a trial was had, which resulted in favor of the defendants and appellees, and the action was dismissed. An appeal was taken to the district court, where, after trial, like conclusions were reached as in the county court; and from a judgment adverse to the plaintiffs and appellants an appeal is prosecuted to this court.

Appellees' counsel now urge that the action is not one that is embraced within the scope and object of section 675 of the Civil Code, providing for appeals in actions in equity, and therefore not appealable, and, to obtain a review of the trial had in the district court, the appellants could only have removed the cause here by a proceeding in error, in its technical sense, in the manner pointed out by statutes for review of the trial judgments and orders by error proceedings. It becomes necessary, then, to inquire whether the case we now have under consideration is an equitable action, within the meaning of section 675, Code Civ. Proc., which says “that in all actions in equity either party may appeal from the judgment or decree rendered or final order made by the district court, to the supreme court of the state,” or whether it is a legal proceeding authorized by some one or more statutory provisions, and reviewable only by proceedings in error.

Incidental to the main question, there seems to be involved the proposition whether, under our laws, the county court is invested with the powers, authority, and jurisdiction of a court of chancery in relation and pertaining to subjects of litigation with which by the constitution and laws it is given exclusive original jurisdiction, as it is in matters of probate. Loosemore v. Smith, 12 Neb. 343, 11 N. W. 493. In the case just cited it is also held that the district court has no original jurisdiction to set aside a will, or the probate of the same. That the county court has exclusive original jurisdiction to try and determine the matters in controversy in the case at bar, we think, must be admitted, and that such is the law we understand there is no controversy. If the action is one which may be properly denominated a legal or statutory proceeding authorized by some enactment of statute law, or is an action at law, in the ordinary meaning of the term, then a review of the trial had in the lower court can be obtained only by prosecuting error proceedings from that court, and an appeal will not lie. Whalen v. Kitchen (Neb.) 85 N. W. 278. If the action begun in the county court is authorized by statute,--if it is founded on a law passed by the legislature, and is not an equitable action, within the meaning of the section quoted,--then it cannot be transformed into such action after appeal to the district court. Whalen v. Kitchen, supra. If it is a proceeding provided for by general law in the administration of estates by the county court in the exercise of the jurisdiction conferred on it by constitutional and statutory enactments, then it must be regarded as legal, and not equitable, and therefore not appealable to this court from the district court. This leads us directly to the inquiry, has the county court jurisdiction to entertain and determine an action in equity, founded upon general equitable principles, such as is exercised by the district courts, as courts of general jurisdiction, possessing the powers of both common-law and chancery courts? By section 16, art. 6, of the constitution, it is decreedthat “county courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlements of estates of deceased persons, * * * and such other jurisdiction as may be given by general law.” The jurisdiction thus given county courts by the constitution is confirmed by general law, and the exercise by that tribunal of all the powers fairly conprehended by the language used is undoubtedly authorized in the fullest and most unrestricted manner. That its powers as to those subjects over which it has exclusive original jurisdiction are plenary, and include the right to grant both legal and equitable remedies, seems to be fully warranted by the language used. It is, to the extent of the subjects mentioned, a court of general jurisdiction, possessing all the authority incident to courts of that grade. In Wilson v. Coburn, 35 Neb. 534, 53 N. W. 467, it is said that the constitution does not prohibit the conferring upon the county court of equity jurisdiction, except as to the subjects enumerated in section 16, art. 6; and it is there held that the jurisdiction, over the subject-matter therein in litigation, of a court of equity (district court), was concurrent only. Says the author (Judge Post): “While, under section 32 of our assignment law, a court of equity would undoubtedly have jurisdiction in a case like this, it is plain to us that such jurisdiction is concurrent only. Nor do we hold that the county court, under the constitution, is or could be vested with general equity powers. What we hold, and what seems to us clear, upon principle, is that the county court, in the exercise of its powers with respect to the personal estate of an insolvent, in the hands of an assignee, may allow whatever relief the parties are entitled to with respect to such property, whether it would, under the former practice, have been denominated legal or equitable.” The court in that case quotes approvingly from Brook v. Chappell, 34 Wis. 405, where it was held, under statutory and constitutional provisions practically the same as ours, that the county court, as a court of probate, had power to enforce a trust in favor of the proponents of a will, and that the jurisdiction of courts of equity in such cases is merely concurrent. On the same subject it is stated in Mattheis v. Railroad Co., 53 Neb. 681, 74 N. W. 30: “It may be conceded that the county court, as a court of record, is invested with equitable powers and jurisdiction in any case before it, when by the constitution or the laws of the state that court is invested with jurisdiction of the subject-matter out of which the case or proceeding in hand grows. But neither the constitution nor any statute of this state invests the county courts with general equitable jurisdiction; and, if this condemnation proceeding was procured by fraud practiced upon the county judge and the appraisers, the county court is not invested with any equitable jurisdiction to vacate it. If, in a...