McGee v. Roberts

39 Mo. 514 | Mo. | 1867

Fagg, Judge,

delivered the opinion of the court.

Upon the application of the appellant, an order was made by the County Court of Clay county directing him as public administrator of said county having in charge the estate of Robert C. Thompson, deceased, to sell all of the real estate belonging to the estate of said deceased, or so niucli thereof as might be necessary to pay the debts of said estate. After-wards the respondents, as the heirs at law of the said Robert C. Thompson, appeared and filed their motion asking the County Court to set aside and vacate the order of sale, which was sustained. An appeal from the action of the County Court was taken to the Circuit Court, which was by the latter court dismissed for the reason that the action of the County Court was not embraced within the provisions of the statute authorizing appeals to be taken from the County to the Circuit Court. The case is brought to this court by appeal, and the record presents but one question to be determined. Section 1 of art. 8, chap. 2, R. C. 1855, after enumerating specifically eleven classes of cases in which appeals from the decision of the County to the Circuit Courts shall be allowed, provides as follows: “ Twelfth. * * * And in all other cases, when there shall be a final decision of any matter arising under the provisions of this act.” The administrator had, in pursuance of the provisions of this statute, made his application for the sale of the real estate belonging to his intestate, and the County Court, by setting aside the order of sale, in effect decided against his petition, and thereby refused to subject the land belonging to the estate to sale for the payment of its debts. What other steps could be taken for the purpose of reaching a final decision of this matter ? The application for the sale was made upon an exhibit of the condition of the estate, and the only question for the determination of the court was whether the personal estate was exhausted so as to require the sale of the real estate for the payment of debts or not. By refusing to make the order of sale the court decided that question, and its ac tion was final and conclusive against the application of the administrator unless appealed from.

The Circuit Court therefore erred in dismissing the appeal, and its judgment is reversed and the cause remanded.

The other judges concur.