66 Ind. App. 175 | Ind. Ct. App. | 1917
On March 8, 1913, the appellant David Studabaker, made written application to the Wells Circuit Court to be appointed executor of the will of Catherine Faylor, deceased, in which he alleged that he had been named executor by the wiii of the decedent, and that pending certain litigation an administrator had been appointed who had charge of the personal property of the estate. Appellee Peter Faylor filed written objections to the appointment of appellant as exeentor, and appellant moved to strike ont such objections, and also filed a motion to require said Faylor to make his objections more specific.' Each of said motions was overruled by the court, and appellant filed a demurrer to the objections of Faylor for alleged insufficiency of facts stated in such objections to defeat his appointment and the confirmation of his letters testamentary.
The transcript was filed in this court on July 19, 1916, and the cause was submitted on August 18, 1916. Appellee’s briefs were filed on November 10, 1916, in which they contend the appeal should be dismissed: (1) Because the-record affirmatively shows that appellant has no appealable interest in the judgment for the reason that after the filing of appellant’s application for letters «the order of the court probating the will of the decedent was reversed by the Supreme Court, on appeal therefrom, and the record does not show that the will was thereafter •probated; (2) the record does not show any order probating the will of decedent, nor that, within twenty days after such will was duly admitted to probate, appellant filed a written application for letters testamentary and gave bond as required by §2737 Burns 1914, §2222 B. S. 1881.
On December 4,1916, appellant filed a petition for a writ of certiorari, in which it is in substance alleged that the transcript in this appeal is incomplete and incorrect because the clerk omitted certain matters therefrom called for by appellant’s praecipe. The application for such writ then sets out “Pleas and proceedings before Hon. Jacob F. Denney, sole judge of the Fifty-eighth Judicial Circuit of the State of Indiana, and ex officio Judge of the Jay Circuit Court” at a term in March, 1916, in the case of
Appellees are resisting the granting of the writ of certiorari because the application shows upon its face that the omitted matter called for is a part of the record of the Jay Circnit Conrt in cause No. 15,607 of that conrt; that it does not appear that the alleged omitted matter is a part of the record of the proceedings in this cause; that the clerk has not disobeyed, but has followed the praecipe and has not omitted from the transcript a part of the record in this cause.
The praecipe is as follows:
“State of Indiana, County of Wells, ss.
Wells Circnit Conrt, April Term, 1916.
“In the Matter of the Estate of Catherine Faylor, deceased.
David D. Stndabaker vs. Praecipe for Transcript.
Peter Faylor, et al.
To the Clerk of the Wells Circnit Conrt:
“The Clerk will prepare and certify a full, true and complete transcript of the entire proceedings, papers on file and judgment in the above entitled cause to be used on appeal to the*180 Supreme Court of Indiana, except the following papers, to wit: — ”
The parts excepted are not material to the questions we are now called upon to decide.
Appellant in his brief in support of his petition for the writ of certiorari, says: “This appeal is from the rulings in a cause in the Wells Circuit Court, entitled Peter Faylor, et al. vs. David D. Studabaker, No. 1,244, in which appellees filed written objections to the granting and confirmation of letters testamentary upon the estate of Catherine Faylor, deceased, to David D. Studabaker. * * * In this proceeding one of the appellees, Eoy Faylor, caused to be probated a will of Catherine Faylor, deceased. * * * • Said cause was changed from the Wells Circuit Court to the Jay Circuit Court * * * in which court said will was probated and transcript filed with the clerk of the Wells Circuit Court.”
An examination of the transcript shows that on February 19, 1913, the will of decedent was ordered probated by the Wells Circuit Court, and that an appeal was prayed and granted to the Supreme Court from such order. On March 8, 1913, appellant made his application for appointment as executor of the will of decedent, Catherine Faylor, in which he alleged among other things that she died testate on July 8, 1902, and left a personal estate of $500 and some real estate; that he was named sole executor of her will; that the same was offered for probate soon after her death, but on account of objections was not probated until February 19,1913, when the same was by order of the Wells Circuit Court duly admitted to probate; that pending the objections to the probate of the will an administrator was appointed to take charge of the personal estate and he has had charge
Appellant shows that the probate of the will in the Jay Circuit Court was in the case of “Thomas Faylor, et al. vs. David D. Studabaker, et ah, No. 15,607,” and that in the Wells Circuit Court this cause was “entitled Peter Faylor, et al. vs. David D. Studabaker, No. 1,244.”
While both parties to this appeal have treated the transcript of the opinion of the Supreme Court reversing the order probating the will as a proper part of. the transcript, we do not so regard it.
It follows from what we have said that the request for a writ of certiorari must be denied.
Appellant saw fit to stan,d .upon the rulings of the court without going to trial or offering evidence in support of his application for appointment.
In this view of the ease it follows that the application for the writ of certiorari should he and is denied; that the appeal should not be dismissed, hut that the judgment should he affirmed because no reversible error is shown by the record. Judgment affirmed.
Note. — Reported in 117 N. E. 772. Executors and administrators: order making or denying appointment, right of appeal, Ann. Cas. 1913C 35S. See under (5-7) 18 Oye 123-126. '