150 P. 1046 | Okla. | 1915
Plaintiff in error appeals from an order of the county court of Caddo county, denying a petition duly verified and filed on August 30, 1911. under sections 4464, 4466-4472, Stat. 1893 (sections 5267, 5269-5275, Rev. Laws 1910), to vacate a decree of distribution of an estate made on June 6 and 7, 1910, in the exercise of the probate jurisdiction of said court in the case of the matter of the estate of John W. Nestell, deceased.
The defendant in error moves this court to dismiss this appeal on the alleged ground that this is a case "arising under the probate jurisdiction of the county court," and that the appeal does not lie to this court in the first instance, but to the district court under sections 15 and 16, art. 7 (Williams', sections 200 and 201) of the Constitution. Said sections 15 and 16 of the Constitution read as follows:
"(200) Sec. 15. * * * Appeals and proceedings in error shall be taken from the judgments of county courts direct to the Supreme Court, * * * in all civil cases originally brought in the county court. * * *
"(201) Sec. 16. * * * Until otherwise provided by law, in all cases arising under the probate jurisdiction of the county court, appeals may be taken from the judgments of the county court to the district court of the county * * * and * * * the cause shall be tried de novo in the district court upon questions of both law and fact."
Section 1559, Stat. 1890 (section 1483, Stat. 1893; section 6501, Rev. Laws 1910) reads:
"An appeal may be taken to the district court from a judgment, decree or order of the county court: * * * Seventh. Refusing, allowing, or directing the distribution or partition of an estate, or any part thereof. * * * *75 Eighth. From any other judgment, decree or order of the court in a probate cause, or of a judge thereof, affecting a substantial right."
The following cases seem to establish the proposition that the term "civil cases," as used in section 15 of the Constitution, supra, do not include any case "arising under the probate jurisdiction of the county court," and that under section 16 of the Constitution, supra, an appeal lies to the district court in all cases in which an appeal is allowed by section 1559, Stat. 1890 (section 1483, Stat. 1893; section 6501, Rev. Laws 1910) supra: Brigman v. Cheney,
In the case of Smith v. J. I. Case Threshing Machine Co.,
"Case No. 395, being a cause of action to set aside and vacate a final settlement and discharge of an executrix, obtained by fraud, comes within the statute above set out. It is a judgment of the county court in a probate cause, and affects the substantial right of the defendant in error, and the appeal should have been prosecuted to the district court instead of the Supreme Court."
Following the Smith Case, supra, the appeal in this case should be dismissed.
By the Court: It is so ordered. *76
