10 Mont. 445 | Mont. | 1891
The appeal herein is prosecuted on behalf of Hannah De Long, and other persons claiming to be heirs at law of Elizabeth McFarland, deceased. Appeal is taken “from an order or decree” of the District Court of the Third Judicial District, directing the distribution of the estate of decedent to Wilbur N. Aylesworth, and to the estate of David H. McFarland, deceased. It appears by the record that said •order or decree of distribution was made and entered February 8, 1890, and that appeal therefrom was taken January 20,1891. Said distributees named in said order now appear by counsel, and move the dismissal of said appeal on the ground that the same was not taken within the time required by law in such cases.
It is contended in support of the motion that the time for taking an appeal in the matter here involved is limited to sixty days under the provisions of sections 324 and 325 of the Probate Practice Act. On the other hand, counsel for appellants contend, in opposition to said motion, that under the new system of judiciary, and the jurisdiction thereof, established by the Constitution, an appeal in the matter at bar should be taken under the provisions of chapters 1 and 2, title xi. of the Code of Civil Procedure; and that the time within which the same must be taken, is prescribed by subdivision 1 of section 421 of the
This motion raises questions of much interest and importance, and fraught with some difficulty in the solution thereof. If sections 324 and 325 of the Probate Practice Act are in force as statutes of this State, the provisions thereof sustain the propositions asserted in favor of the motion before us, and this appeal should be dismissed. If, however, for any cause of invalidity, said sections were not in force as statutes of the Territory, the same cannot be statutes of the State; because the enabling act •of Congress (§ 24) and our Constitution (Schedule, § 1) both provide that the laws of the Territory in force at the time the State should be admitted into the Union, and not inconsistent with the Constitution and laws of the United States, or our State Constitution, should remain in force as the laws of the State until otherwise provided. We therefore address our inquiry at once to the question of the validity of said sections 324 and 325 of the Probate Practice Act. Said sections providing for an appeal directly from the Probate to the Supreme Court were passed subject to the organic law governing the Territory of Montana in 1887, and were valid or null, by virtue of that law. The Organic Act of the Territory of Montana (§ 9) provides: “That the judicial power of said Territory
We think it is palpable without argument that, where the organic law provided that the jurisdiction of the courts of the Territory, “both appellate and original,” shall be limited by law, and that “in all cases” appeals to the District Courts should lie “from any order, judgment, or decree of the Probate Courts;” and further, that the appellate jurisdiction of the Supreme Court should be of appeals “from final decisions of the District Courts,” — a law passed by the legislative assembly governed by such fundamental provisions, directing the course of appeals otherwise, is void and of no effect, in so far as it prescribes such other course of appeals. This conclusion would
The statutes comprised in said sections 324 and 325 (Prob. Prac. Act) are not the only statutes providing for appeals from the orders, judgments, and decrees of the Probate Courts. Chapter 3 of title 11, page 180 (Comp. Stats), is entirely devoted to the subject of appeals from the Probate to the District Courts; and the same orders and decrees in probate matters are there made appealable to the District Courts, which by section 324 of the Probate Practice Act are made appealable directly from the Probate to the Supreme Court. It is further provided in section 699 (Code Civ. Proc.) that “the jurisdiction of the District Court shall be original and appellate.” Section 701 (Code Civ. Proc.) provides that “the appellate jurisdiction of these [District] Courts shall extend to hearing upon appeal an order or judgment of a Probate Court or justice of the peace in the cases provided by law. ” Section 697 (Code Civ. Proc.) provides : “ The Supreme Court shall have appellate jurisdiction
The foregoing inquiry into the conditions which governed the practice under the old system concerns the question before us, not only in order to find whether or not sections 324 and 325 (Prob. Prac. Act) are valid statutes of the State, by virtue of having been valid statutes of the Territory, but also as shedding some light upon the practice to be pursued in the appeal from judgments, orders, and decrees of the District Courts, in probate matters, under the new conditions inaugurated by the adoption of our State Constitution. It cannot yet be said, in respect to our system of laws, “ old things are passed away; behold, all things are become new.” While we have a new judiciary, established by the Constitution, wherein there is no Probate Court, as a distinct member of that system, we have the old body of statute laws, which was modeled to apply to the territorial system in which there was a distinct Probate Court; which statutes are still in force as State laws, in so far as the same are not inconsistent with the Constitution. (Const. Schedule, § 1.)
. By a provision of the Constitution the original jurisdiction of the District Courts thereby established is extended over the whole field of “matters of probate.” (Const, art. viii. § 11.) By this provision “ all matters of probate,” and necessarily the adiministration of all laws relating thereto, are now under the original jurisdiction of the District Courts. In order to make the statutes relating to probate matters and Probate Courts apply to the District Courts under the new system, it is provided in the Constitution (Schedule, § 4), that the term “probate,” where it occurs in the statute, in the combination “probate judge,” or “Probate Court,” is eliminated, and the
It is objected that the term “judgment,” as used in the Code of Civil Procedure, and especially as used in sections 421 and 444 thereof, was not intended by the framers of the Code to apply to or include an order or decree of the court exercising probate jurisdiction, directing the distribution of an estate, as in the case at bar; or granting letters testamentary or of administration, or refusing the same; or an order made upon the settlement of an executor, or administrator, or guardian, etc.
What is a “judgment” in contemplation of our Code of Civil Procedure? It is not necessary to look beyond that instrument for a definition of the term. Section 238 (Code Civ. Proc.) defines the term as follows: “A judgment is the final determination of the rights of parties in an action or proceeding.” There is a large class of matters or subjects arising in the administration of probate matters, susceptible of final determination by the court exercising probate jurisdiction, so far as concerns the action of that court; like the subject at bar, an order or decree directing the distribution of the estate. This certainly comes under the head of a “proceeding,” and the action of the court was a final determination of the rights of all parties claiming a right of succession to said estate, or a part thereof. It is plain that the action of the court, by whatever term it may be designated, has all the elements of a judgment under the statutory definition. If the term “judgment” was
It can be demonstrated by the provisions of the Code of Civil Procedure that the term “judgment,” as therein defined, was intended to include and apply to such orders or decrees in purely probate matters, as that involved in the case at bar; and further, that the general provisions of chapters 1 and 2, title 11, Compiled Statutes, were intended to provide for appeals to the Supreme Court from the “final determination of the rights of the parties” in proceedings pertaining to purely probate matters as well as formal litigation. The matters of probate susceptible of final determination by the court exercising jurisdiction over the same are grouped together in section 445 of the Code of Civil Procedure, such as: “ Admitting a will to probate, or refusing the same; setting apart property, or making an allowance to the widow or children; granting letters testamentary or of administration, or appointing a guardian, or refusing to grant such letters or make such appointment; or an order or decree by which a debt, claim, legacy, or distributive share is allowed or payment thereof directed, or by which such allowance or direction is refused,” etc. All the proceedings in purely probate matters there mentioned are made appealable from the Probate to the District Court. (§ 445, Code Civ. Proc.)
In referring generally to appeals from the Probate Court, provided for in chapter 3, title 11 (Code Civ. Proc.), section 450 of that chapter provides that “ the appeal shall be taken by filing with the clerk of the court in which the judgment appealed from is entered .... a notice stating the appeal from the same.” Here the term “judgment” is applied indiscriminately to the final determination of the rights of parties in matters purely probate, as well as to matters of formal litigation in the Probate Court. These matters of probate being appealed to the District Court, all the original papers pertaining to the case, with a transcript of the docket, were by section 454 (Code Civ. Proc.) directed to be transmitted to the District Court. Section 457 of the same chapter provides: “That all appeals taken by virtue of this act shall be tried in the District Court upon the papers in the case, as if the same had originally
Bearing in mind that the legal definition of the term “judgment” is “the final determination of the rights of parties in an action or proceeding,” it will be interesting to notice a little further what terms the framers of our Codes employ in referring to matters purely probate. The term “proceeding” is used in the Probate Code as a general designation of the action and procedure whereby the law is administered upon the various subjects within the probate jurisdiction. Section 1 of the Probate Practice Act provides: “ The proceedings of the-Probate Courts shall be construed in the same manner and with like intendments as the proceedings of courts of general jurisdiction.” Section 5 of the Probate Practice Act provides that “ the seal of the court need not be affixed to any proceedings therein, except,” etc. Section 328 of the Probate Practice Act provides that “at or before the hearing of petitions and contests for the probate of wills; for letters testamentary or of administration; for sales of real estate, and confirmations thereof; settlements, partitions, and distributions of estates; setting apart homesteads, and all other proceedings where all the parties
A careful study of the Code will reveal the fact that the terms “case” and “proceeding” are used in a much broader and less technical sense than the term “ action.” Section 697 (Code Civ. Proc.) provides: “ The Supreme Court shall have appellate jurisdiction in all cases tried in the District Courts,” This statute is no less in force now than under the territorial system, for it is in entire harmony with section 15, article viii. of the Constitution, which provides: “Writs of error and appeals shall be allowed from the decisions of the District Courts to the Supreme Court under such regulations as may be prescribed by law.” The District Courts now have original jurisdiction of “all matters of Probate.” (Const, art. viii. § 11.) We think the final determination by those courts of cases in the probate department of their jurisdiction, susceptible of final determination, such as are enumerated in section 445 of the Code of Civil Procedure, ought still to be regarded as final judgments of the District Courts, and where appeal to the Supreme Court is sought, the same must now be taken under the regulations prescribed for appeals “ from final judgment in an action or special proceeding commenced in the court in which the same is rendered.” (Code Civ. Proc. chs. 1, 2, tit. 11.)