Willmering v. Mcdonnell (In re Willmering's Estate)

• Decision Date: 19 July 1932
• Docket Number: Case Number: 21178
• Citation: 158 Okla. 208,1932 OK 557,13 P.2d 168
• Parties: In re WILLMERING'S ESTATE. WILLMERING v. McDONNELL et al.
• Court: Oklahoma Supreme Court

1932 OK 557

13 P.2d 168

158 Okla. 208

In re WILLMERING'S ESTATE.

WILLMERING v. McDONNELL et al.

Case Number: 21178

Supreme Court of Oklahoma

Decided: July 19, 1932

Syllabus

¶0 Wills--Courts--Appeal of Probate Case to District Court Held Improperly Dismissed for Failure to File Transcript in Time.

The lower court dismissed the appeal of the plaintiff in error from the county court to the district court in the matter of the probate of the will of Henry Willmering, deceased, because the transcript was not filed in time. Under the authority of In re Folsom's Estate, 57 Okla. 79, 159 P. 751, the case is reversed and remanded, with directions to reinstate the appeal and proceed.

Appeal from District Court, Oklahoma County; Wyley Jones, Judge.

In the matter of the estate of Henry Willmering, deceased; Walter C. Willmering, contestant of will; Thomas P. McDonnell and Frank A. Willmering, proponents. Appeal of contestant from county court to district court dismissed, and he brings error. Reversed, with directions.

Ruby Turner-Looper, for plaintiff in error.

Hall & Thompson, for defendants in error.

KORNEGAY, J.

¶1 This is a proceeding in error to review the action of the district court of Oklahoma county in dismissing an appeal thereto from the county court of Oklahoma county in the matter of the probating of the will of Henry Willmering, deceased. The journal entry recites the facts and is as follows:

"This cause coming on to be heard this 4th day of October, 1929, being one of the regular judicial days of the September term of said court, this cause comes on to be heard in its regular order; upon the motion of the proponent herein to dismiss contestant's appeal in the case from the county court of said county and state to this court, the parties being present in person and by their attorneys of record, respectively, herein, and hearing the argument of counsel, it appearing to the court that this cause was heard before the Honorable C. C. Christison, judge of the county court on the 2nd day of May, 1928, and the court made an order or decree denying contestant's petition and admitted said will therein to probate, to which order or decree contestants at the time excepted and saved his exceptions, which was on the 2nd day of May, 1928; that on the 9th day of May, 1929, contestants filed with the clerk of said court notice of appeal from said decree or order, as provided in section 1414 of the Compiled Statutes of Oklahoma 1921, and on the 9th day of May, 1928, contestants filed appeal bond for costs as provided by said section 1414 of said statutes, and it appearing to the court that said notice of appeal and appeal bond were given, made and filed in court as and in the manner prescribed by said statute.

"It further appearing to the court that the judge of the county court of said county and state, did not cause certified copy of said notice, bond, and judgment, the specific part thereof appealed from and of the record, papers and proceedings in the case to be transmitted within ten days after the filing of such notice of appeal and the giving of the appeal bond aforesaid, as provided, in section 1422, Compiled Statutes of Oklahoma 1921, but did file said appeal with the clerk of this court on the 12th day of January, 1929, and it appearing to the court that the failure of the judge of the county court to file such papers and records, as provided in said section, within ten days after the filing of said notice of appeal and the giving of the appeal bond by contestants, leaves this court without jurisdiction to hear the matters and things complained of in contestants' petition and that said appeal from the county court to this court should be dismissed.

"It is, therefore, ordered, adjudged, and decreed that contestants appeal herein be, and the same hereby is, dismissed.

"Thereupon, contestants object and except to the order of the court, and such exceptions are by the court allowed.

"And thereupon contestants give notice in open court of their intention to appeal from this order to the Supreme Court of the state of Oklahoma, and the Clerk of this court is ordered to note such intention to appeal upon the trial docket of this cause.

"It is, therefore, further ordered by the court that such appeal be allowed; that contestant make a good and sufficient bond in the sum of $ 200 to be approved by the Clerk of this court, with two or more sufficient sureties, conditioned as required by law, to supersede this judgment; that such contestant have 30 days from this date within which to prepare and serve a case-made herein, that all parties have three days thereafter in which to suggest amendments, the same to be signed and settled upon three days' written notice thereafter.

"'Wyley Jones,

"Judge

...