42 Vt. 43 | Vt. | 1869
The opinion of the court was delivered by
Wilson, J. The probate court, upon application of the appellees, who represented themselves creditors, and who had failed to present their claims to the commissioners within the time previously limited for that purpose, ordered that the commission be renewed and allowed sixty days further time for the commissioners to examine said claims and report thereon. From this order of the probate court the defendant, as administrator, appealed and carried his appeal into the county court before any report upon, said claims had been made by the commissioners. Section 1 of chapter 53 of the General Statutes, provides that “ where letters testamentary or of administration shall be granted by any probate-court, it shall be the duty of such court to appoint two or more suitable persons to be commissioners, to receive, examine and adjust all claims and demands of all persons against the deceased, except in the following cases : Pirst, where it shall appear that-there are no debts existing against such person; Second, where-the value of the whole estate shall not exceed the sum of three-
The subject matter before the probate court in this case upon that application was not limited to the mere question whether the commission should or should not be renewed, but it embraced the claims on which the application for a renewal of the commission was founded, and the order, renewing the commission, was the inception of the regular statutory proceedings for the purpose of allowing or disallowing the claims which the order allowed the claimants to present, and those claims were the principal subject matter before the probate court. The order renewing the commission was strictly interlocutory, from which no appeal lies until the coming in of the commissioner’s report and its acceptance by the probate court. Such order of the probate court is analagous to an interlocutory judgment of the county court appointing an auditor, and to an order of reference or other interlocutory order in a suit in chancery. In a suit at law, if the parties wish to save any questions of law decided by the county court on any interlocutory judgment which does not make a final disposition of the cause in that court, they except to the opinion or judgment of the court, and have the exceptions allowed and filed, and if the final judgment is against the party excepting to such interlocutory judgment, the cause can then pass to the supreme court for revision of all rulings and judgments of the court' below, to which exception had been taken. In chancery either party may assign error in an interlocutory order or decree, as well as in the final order or decree in the cause, and in such case, upon such order or decree of the court of chancery being brought by appeal from the final order or decree of that court to the supreme court, the court will examine all errors that shall be assigned or found in such interlocutory or final order or decree, and affirm, reverse, or alter such order or decree as justice shall require. But no civil cause can come regularly before this court, from the county court, or court of chancery, until a final judgment or decree is rendered or made therein by the court that allowed the exceptions or granted the appeal. In the settlement of estates in the probate court, the parties or persons interested therein, who wish to save any ques
II. It is claimed by the appellees that they are improperly joined in the order and notice of the appeal, but we think the objection is not well taken. The applications for renewal of the commission are several, but any number of creditors may join in an application for renewal of such commission. The order renewing the commission should, and in this case it does, specify the creditors as to whom the commission is renewed; but the subsequent proceedings, with reference^ to the merits of their respective claims, should be several. The appeal having been taken directly from the order renewing the commission, joint notice of it is well enough. We are of opinion that the appeal taken was premature, and for this reason it was correctly dismissed. The judgment of the county court is affirmed.