106 Minn. 353 | Minn. | 1908
Viola M. Dunn, a resident of Grant county, died in the year 1900, leaving a last will and testament by which she devised to her daughter, Blanche Dunn, her residence property situated in the city of Minneapolis. George M. Blandin was named as executor, and he duly qualified and entered upon the discharge of his duties, continuing therein until removed as hereinafter stated. In September, 1907, a petition for the removal of Blandin was presented to the probate court of Grant county, the court having charge of the administration of the estate, and after hearing on the merits an order of removal was granted, based upon the ground that Blandin had mismanaged the estate and failed and neglected to obey orders of the court, from which Blandin appealed to the district court. The appeal came on for hearing at the May, 1908, general term of the district court, at which time all parties appeared. It was apparent on the preliminary call of the calendar that the business before the court could not be completed at that session, and the presiding judge announced that an adjourned term would be convened on June 23 for the hearing and disposition of all matters and causes not disposed of at that time. It was then practically understood by counsel engaged in this matter that it would not be called or reached until the adjourned term, and appellant and his counsel returned to their homes. The matter was not reached at that session, and the court was adjourned in conformity with the previous announcement until June 23, at which time the court reconvened to complete the unfinished business. This matter was called in its order on the calendar, and, no one appearing for the appellant, the court ordered the appeal dismissed and the order of the probate court affirmed. Thereafter counsel for appellant moved the court, on affidavits, to be relieved from the default, to set aside the order dismissing the appeal, and for a hearing thereof on its merits. The motion was denied. Thereafter formal
It is contended by appellant that the order and judgment of the district court were erroneous, and should be reversed, for the reason that the court had no power to order a dismissal or affirmance, except after a trial on the merits of the issues presented by the appeal. Counsel cite in support of this contention section 3878, R. R. 1905, which provides that appeals from the probate court should be heard and tried in the district court in the same manner as other issues of fact are heard and tried, and also section 4195, relating to the dismissal of actions in the district court. We are unable to concur in appellant’s contention.
The statutes referred to do not control a situation of the kind here presented, where the appellant, on an appeal from the probate court to the district court, fails to appear and prosecute his appeal when called for trial. The case is governed entirely by section 3879, which provides that “whenever the appellant fails to prosecute his appeal, or the order, judgment, or decree appealed from or brought up on certiorari is sustained by the district court on the merits, it shall enter judgment affirming the decision of the probate court, with costs.” This clearly authorizes judgment of affirmance (1) when appellant fails to appear and prosecute his appeal, and (2) when the order, judgment, or decree appealed from is sustained on the merits. The statute does not require the hearing of an appeal on the merits in cases where the appellant does not press his cause, and his absence and failure to appear render such a hearing wholly unnecessary. Nor is it important whether, on an appeal of this kind, the appellant or the respondent be required to take the initiative or burden of proof. The court is not required to entertain the appeal, unless there is some controversy to determine, and for all practical purposes there can be no controversy when a party, bringing a cause into court and seeking relief from a judgment against him, fails to appear and present his case. The court was therefore right, under the statute, in affirming the order of the probate court.
There may be an inconsistency in the order of the district court in both dismissing the appeal and affirming the order appealed from.
We come, then, to the only real question in the case, viz., whether the court below erred in refusing to relieve appellant from his default. Appellant’s motion was addressed to the discretion of the court, and from a careful reading of the affidavits in support of and in opposition thereto we are unable to say that the learned judge below was in error. The executor has no personal interests to protect. He has no vested right to continue as executor. Whatever interest he may have in the matter concerns only the allowance of his account as such. This is within the exclusive jurisdiction of the probate court, and his removal in no way affects his right to be heard thereon.
Judgment and order affirmed.
On January 15, 1909, the following opinion was filed:
■Attention is called in an application for a rehearing to section '4167, R. L. 1905, which provides that, if a party is absent when the case is called for trial, the adverse party shall, unless the court otherwise orders, proceed with his case and take a dismissal, or a verdict, or a judg
Petition for rehearing denied.