37 Miss. 644 | Miss. | 1859
delivered the opinion of the court.
This case is brought here by appeal from the Court of Probates of Nashoba county.
A preliminary question in relation to the regularity of the appeal is raised.
It appears by the record, that the proceeding in the court below was by the petition of a distributee of an intestate’s estate, seeking to have certain assets inventoried as a part of the estate. The administrators, who were respondents to the petition, filed their original answer under oath; and, after the lapse of several terms of the court, they applied for leave to file an amended answer, not under oath, differing in a material respect from the original answer. The
The appeal thus taken is irregular in two respects.
1. It appears to be merely an appeal from the interlocutory order of the court disallowing the demurrer to the amended answer. The demurrer to the answer being irregular in practice, the action of the court upon it cannot amount to more than treating it as an exception to the answer, and holding the answer to be sufficient as upon exception to it, or upon motion to have it taken from the files. So regarded, the decision of the court upon the demurrer was in effect, that the objections to the answer were not tenable, and that the answer was sufficient, if true. And this was merely interlocutory, leaving the merits of the cause, as it was presented by the petition and answer, to be subsequently disposed of. The order of the court upon the demurrer, and which is the only matter appearing by the record to be appealed from, is therefore merely interlocutory, and not the subject of an appeal under our statutes.
2. The subject-matter of appeals from the Court of Probates depends entirely upon statute regulations. The statute provides for them, and prescribes .the mode in which they shall be taken, which, in cases of this sort, must be taken “ on petition to the clerk of the Probate Court.” Rev. Code, 431, Art. 28. It does not recognize an appeal granted in open court; and, under the rule sanctioned by this court, no other mode of bringing a case here by appeal can be allowed than that prescribed by the statute. The State v. Tuomey, 5 How. 50; Laftin v. The State, 11 S. & M. 358.
The appeal is, therefore, irregular, and must be dismissed.