Muhlhauser v. Becker

20 N.W.2d 363, 74 N.D. 35, 1945 N.D. LEXIS 49

Opinion

Burr, J.

In the case of Emelie Muhlhauser et al. v. Selma Becker and Fritz Gappert, known as case #6971 [post, 103, 20 NW(2d) 353] which came before the district court upon the appeal of the plaintiffs herein from the decree of the county court, taken solely on the ground that the county court had no jurisdiction to determine the issue involved in the claim of defendants to be entitled to the estate of Frederick William Grap-pert, deceased, we have just decided that since the county court had no jurisdiction to hear and determine the issue presented to it, the district court on such appeal, should have so determined and have reversed the decree of the county court without proceeding to determine'the claim of the defendants to the estate involved.

The district court, however, having upheld the action of the county court, proceeded to determine the validity of the defendants’ claim on the appeal to the district court, and, while finding in their favor and ordering judgment accordingly, allowed the plaintiffs herein the sum of $975.00 for attorneys’ fees and $200.00 for administrator’s fees to be paid out of the estate. From the portion of the judgment allowing such fees the defendants appeal.

In view of our decision in this case #6971 (q. v.) the district court should not have made such allowances. Accordingly the judgment appealed from is reversed.

ChristiaNSON, Ch. J., and Morris, Burke and Nuessle, JJ., concur.