26 Mont. 279 | Mont. | 1902
delivered the opinion of the court.
Motion to dismiss appeals. On July 12, 1901, the appellant, David L. S. Barker, as administrator of the estate of Edwin J. Barker, deceased, filed an account of his administration covering the time from his appointment until that date, and asked that it be allowed. At that time there was pending a petition filed by Marcella S. Barker, the widow of the deceased, charging the administrator with mismanagement and fraud in .connection with his trust, and asking that he be removed from his office. This petition had been pending for some time, and some evidence had been heard in support of the charges. Marcella S. Barker also filed written objections to certain items in the account, and asked that they be disallowed. One of these items was a charge of $500 for attorney’s fees claimed ,by the administrator to have been paid for ser-, vices rendered in connection with the estate. Another was an individual claim of David L. S. Barker, the administrator, as creditor of the deceased, which had theretofore been presented to the judge, and had been indorsed “Allowed.” The amount of this claim is $2,098.80. A healing was had upon the account and the petition for removal, upon evidence then and theretofore taken; but before the motion was finally submitted, the petition for removal was withdrawn, and the administrator tendered to the court his resignation, in writing, asking the court to discharge him upon settlement of the account. On August 1, 1901, the court made an order settling the account, after striking out some of the items objected to, including $250 of the first and the whole of the second, mentioned above. The order also directed the administrator to deliver to Marcella Barker, who was at the same time appointed special adminis-tratrix, all the property and assets in his hands belonging to the estate, and to file his receipts therefor for approval and final discharge. The order specifically mentioned 426,120 shares of the stock of the Big Seven Mining Company, which
1. The appellant contends that he has appealed' from the ■order as a whole, and that the motion cannot be entertained. The notice shows that the appellant, in taking the appeals, proceeded upon the assumption, that they are separate and distinct ; for if the recital in the first paragraph of it be read with •each of the three others, which are numbered in consecutive ■order, there is a separate and distinct notice for each appeal. Evidently counsel for appellant had in mind, when giving the notice, Section 1724 of the Code of Civil Procedure, which ■contemplates the taking of appeals from a judgment or order, or a specific part thereof, and proceeded upon the theory that he could take the appeals as he did. The appeals may therer fore, upon this theory, be treated as separate and distinct, and the motion may be entertained as to the two at which it is ■directed. Furthermore, though the action taken by the district court at that time is all included in the same paper, several distinct and separate orders were made, and each of these, for the purposes of appeal, must be so treated, though all are included in the same notice.
The portion of the order disallowing the David L. S. Barker individual claim of $2,098.80 is, in legal effect a rejection of the claim against the estate in the first instance. It was within the power of the court to reconsider its action in allowing the
2. The order rejecting the claim of $2,098.80 is not appeal-able, for the reason that there is no. provision in the statute permitting an appeal. (Code of Civil Procedure, Sec. 1722; Session Laws 1899, p. 146; Estate of James Tuohy, 23 Mont. 305, 58 Pac. 722.) In such case the claim must be enforced against the estate under the provisions of Section 2608 of the Code of Civil Procedure. The remedy there provided is exclusive.
There is another consideration which is also conclusive upon the appellant. An appeal is allowed in any case to those persons only who are aggrieved by the judgment or order complained of. (Code of Civil Procedure, Sec. 1721.) The rejection of the claim of David L. S. Barker in his capacity as a creditor of the deceased in no way affected the rights of David L. S. Barker in his capacity as administrator. In each capacity he is a different person, and has distinct and separate rights. The appeal having been taken by him in his official capacity, his individual rights cannot be considered, because they are not before us, even though it be conceded that he had the right
3. Nor does the statute permit an appeal from an order directing an administrator to turn over to his successor, upon resignation or removal, the property belonging' to the estate, or which has come into his hands as such. If the particular property belonged to the estate, or came into his bands because of his official position as administrator, it was entirely proper for the order to be made, and, as administrator, he was bound to obey it. If it did not belong to' the estate, and was not held as such, the court had no power to. compel him to part with it. Upon the settlement of accounts the court has. no. power to adjudicate and finally determine questions of title between the estate and third persons. This can be done by action only, in which the parties may be accorded the right of trial in the ordinary way. If, therefore, David L. S. Barker held the stock by any other right than as administrator, the order cannot affect such right. It is simply void. If he obtained its custody by virtue of his appointment as administrator, and not in his individual capacity, the order was proper, and should be obeyed. In any event, no appeal lies from the order, .and this court has no. jurisdiction to entertain it.
The two appeals at. which the motion is directed are dismissed.
Dismissed.
