In re Kelly's Estate

78 P. 579, 31 Mont. 356, 1904 Mont. LEXIS 159

• Court: Montana Supreme Court
• Decided: December 1, 1904
• Docket: No. 2,060
• Status: Published

Opinions

MD. COMMISSIONED CALLAWAY

prepared the following opinion for the court:

One Harold Kelly, alleging himself to be an heir of Patrick Kelly, deceased, has attempted to appeal from two orders made by the district court, viz., from an order denying his application to vacate the decree of distribution in the matter of the estate of Patrick Kelly, deceased, and from an order denying his application to vacate an order settling the administrator’s account and discharging him.

It is apparent that no appeal lies from either of the orders mentioned.

Subdivision 3 of Section 1722, Oode of Civil Procedure, as amended (Session Laws 1899, p. 14-6), provides that an appeal may-be taken to the supreme court from a district court in the following eases: “Erom a judgment or order granting or refusing to grant, revoking or refusing to revoke, letters testamentary or of administration, or of guardianship; or admitting or refusing to admit a will to probate, or against or in favor of the validity of a will, or revoking the probate thereof; or against or in favor of setting apart property, or making an allowance for a widow or child; or against or in favor of directing the partition; sale or conveyance of real property, or settling an account of an executor, or administrator, or guardian; or refusing, allowing, directing the distribution or partition of an estate, or any part thereof, or the payment of a debt, .claim, legacy or distributive share; or confirming or refusing to confirm a report of an appraiser setting apart a homestead.”

The foregoing enumerates all the cases in which an appeal may be taken to this court from the district court in probate proceedings, and an order refusing to vacate a decree of distribution and settlement of final account is not one of them; neither is an order denying an application to vacate an order settling an administrator’s account and dischai’ging him. (In re Wiard’s Estate, 83 Cal. 619, 24 Pac. 45.) It has been uniformly held that an appeal from an order of the character of those before us cannot be sustained unless the orders are specifically enumerated in the statute. (Estate of Calahan, 60 Cal. 232; Estate of Dean, 62 Cal. 613; Lutz v. Christy, 67 Cal. 457, 8 Pac. 39.) “The party against whom an appealable judgment or order has been made, or who is aggrieved thereby, may not appeal from an order refusing to vacate, dissolve or modify it.” (Butte Con. M. Co. v. Frank, 24 Mont. 506, 62 Pac. 922.)

(Decided January 23, 1905.)

If the appellant found himself too late to appeal from the orders which he moved to set aside and vacate, he should have adopted a different course from that pursued in order to obtain relief.

In our opinion, the court has not jurisdiction to entertain these appeals, and they should be dismissed.

Per Curiam.' — Eor the reasons given in the foregoing opinion, the appeals are dismissed.