Wiggle v. Owen

43 Miss. 158

• Court: Mississippi Supreme Court
• Decided: May 15, 1870
• Status: Published

Opinion

Simrall, J.:

B. L. Owen, as the guardian of Mrs. Wiggle, made his final settlement in the probate court of Itawamba county. Afterwards Wiggle and wife filed a bill of review in the same court, seeking to surcharge, falsify and vacate this settlement and the decree thereon. The bill was taken for confessed, and at the April term, A. D. 1869, a final decree was rendered — opening the decree made on the final account at the August term, 1866, and adjudging B. L. Owen to be"indebted to his ward a balance of $941 71, for which execution might issue. The complainants, Wiggle and wife, in open court, remitted all of this sum except $341 71. At the May-term, 1869, B. L. Owen, guardian, appeared and moved the court, for sundry reasons, to set aside the pro oonfesso, and final decree entered at a former term.

This motion was sustained, andtheyw oonfesso, and the. final decree set aside, and ten days’ time given to Owen to plead, answer, or demur to the bill of complaint or petition. On the 28th of May, a demurrer was filed to the bill or petition, assigning several special caused. No action was had by the court on the demurrer. But, on the 28th of June, A. D. 1869, Wiggle and wife filed with the cleric of the probate court, a petition of appeal, complaining of the judgment of the court in sustaining the motion of Owen, setting aside the pro oonfesso and the final decree on their bill of review. The appeal was granted, bond executed, and the case was brought to this court.

From this statement of the facts in the record, it will at once be apparent that we have no jurisdiction of the appeal.

Art. 28, p. 430, Code, allows appeal on petition to the clerk, from any “final judgment or decree of the probate court, at any time within three years after passing such judgment or decree.” Under the act of 1837, a writ of error may be prosecuted to bring up a final decree of the probate court.

There is no statute allowing appeals from interlocutory orders of the probate court as there are from the chancery court. The order appealed from, is not a final decree. The case will not be in condition to be reviewed in this court until a final disposition has been made of it by the probate court. In this view of the record, whatever'opinion we might pronounce on the action of the probate court in opening a final decree, on motion, at a subsequent term to that at which it was passed, would be extra-judicial.

Let the appeal be Dismissed for want of jurisdiction.