23 Mont. 305 | Mont. | 1899
Motion to dismiss appeal. Cyril Pauwelyn, as executor of James Tuohy, deceased, seeks herein to have
An appeal is authorized by statute only and, unless the judgment or order which it is sought to have reviewed in this mode falls fairly within the enumeration of appealable orders or judgments made by the statute, the appeal does not lie. (Hayne on New Trial & App., Sec. 181.) Appeals from district courts in this regard are provided for in Section 1722 of the Code of Civil Procedure, as amended by the Session Laws of 1899, p. 146. Under this section we find three classes, of judgments or orders from which appeals may betaken. Subdivision 1 includes all final judgments; subdivision 2 enumerates orders granting or refusing á new trial, orders made in extraordinary proceedings, interlocutory orders and special orders after final judgment; subdivision 3 enumerates judgments or orders in probate proceedings. This section was copied into our Code substantially from the Code of California. Though appeals are provided for therein not recognized by the Code of that state, the theory of classification is the same in both Codes. (Estate of Calahan, 60 Cal. 232.) The case cited involved the question whether an appeal lies from an order vacating a decree of distribution. The court observes: ‘‘It is quite clear that the first and second classes embrace judgments and orders other than those made in probate proceedings, and that the third class embraces only such as are made in such proceedings. ’ ’ The order was held to be nonappealable, because not enumerated among those declared in that class to be appealable. It was also held in that case that this order is not included in the second class, under the head of ‘‘any special order made after final judgment,” for the reason that the final judgment there mentioned refers to
These cases furnish support for the rule, which seems entirely reasonable, that appeals from judgments or orders in probate proceedings are allowed only under the provisions of subdivision 3, except in the single case of an order granting or refusing a new trial, which may be taken under subdivision 2, as provided by section 2921, supra.
Counsel for the executor cite In re McFarland’s Estate, 10 Mont. 446, 26 Pac. 185, and In re Higgins’ Estate, 15 Mont. 475, 39 Pac. 506, in support of the position that the order appealed from is a final judgment in a special proceeding, and therefore appealable under the first subdivision of section 1722, supra. They call attention to the fact that similar orders were in these cases held to be final judgments, and appealable, under Section 421 of First Division of the Compiled Statutes. It is sufficient to say of these cases that the Com
The order here considered is nowhere specifically mentioned in subdivision 3, unless it is included under the head of an order “against or in favor of directing the partition, sale or conveyance of real property, ’ ’ and whether it is provided for here turns upon the construction to be given to the word “conveyance.” In the Civil Code, Section 1642, the term £ ‘conveyance for the purposes of recordation’ ’ embraces ‘ ‘every instrument in writing by which an estate or interest in real property is created, aliened, mortgaged or incumbered, or by which the title to real property may be affected, except wills. ’ ’ Under section 1641, leases for terms exceeding one year are required to be recorded. Therefore this class of leases falls within the meaning of “conveyance,” as used in section 1642. But we apprehend that the term, as used in section 1722, supra,
We therefore hold that an appeal does not lie from the order in question, and that the appeal must be dismissed.
Dismissed.