Fillmore v. Estate of Morgan

108 A. 840, 93 Vt. 491, 1919 Vt. LEXIS 196

• Court: Supreme Court of Vermont
• Decided: December 27, 1919
• Status: Published

Opinion

Slack, J.

The appellee, as administrator of the estate of Mason C. Morgan, filed a petition in the probate court for the district of Bennington, wherein the estate of William R. Morgan was then in the process of settlement, for the purpose of having the commission thereon renewed, in accordance with the provisions of P. S. 2821, as amended by Acts of 1908, No. 72, so that he might present a claim for the estate of Mason C. “Upon hearing,” to quote from the appellant’s brief, that court, by its order dated September 10, 1915, renewed the commission as prayed for by the appellee. From this order the appellant appealed to the Bennington county court. Her appeal was entered October 20, 1915. On January 26, 1916, the appellee filed a motion to dismiss the appeal “upon the grounds and for the reasons apparent upon the face of the record.” The motion was granted and the appeal dismissed, to which the appellant excepted.

The only question for consideration is whether the court erred in dismissing the appeal.

The order from which the appeal was taken was an interlocutory one from which no appeal lies. Timothy v. Farr, 42 Vt. 43; Leach v. Leach, 51 Vt. 440; Felton v. Sowles, 57 Vt. 382; Wilcox v. Wilcox, 63 Vt. 137, 21 Atl. 423. The appellant’s contention that the addition of the words, ‘ ‘ except as otherwise provided, ” to G. S. chap. 48, § 30, in force when Timothy v. Farr was decided, P. S. 2973 (G. L. 3455), enlarged the scope of this statute so that now an appeal lies from every order of the probate court, when the law does not provide otherwise, is without merit. The two cases last cited, both decided since the change referred to, were dismissed because the order appealed from was not a final order. • Besides, the holding in Timothy v. Farr received the attention, and apparent approval, of this Court in White’s Admr. v. White, 91 Vt. 74, 99 Atl. 305. It is clear from the foregoing that the county court did not have jurisdiction of this case.

But the appellant insists that the motion should have been denied because it was not seasonably filed, and because it did not point out more specifically the grounds relied upon. It is not necessary, however, that jurisdictional questions like the one under consideration should be formally raised, or brought to the attention of the court at any particular time. When it discovers that it does not have jurisdiction, the court will dismiss the cause, at any stage, whether moved by a party or not. Miner’s Exrx. v. Shanasy, 92 Vt. 110, 102 Atl. 480; Sanders v. Pierce, 68 Vt. 468, 35 Atl. 377; Wilcox v. Wilcox, supra. See also Page v. Page’s Admr., 91 Vt. 188, 99 Atl. 780.

The appeal not being properly before us we have no occasion to, and have not, considered the other questions raised by the appellant.

Judgment affirmed, to be certified to the probate coiort.