63 Neb. 859 | Neb. | 1902
This action comes to this court from the district court by appeal, as distinguished from proceedings in error. The appellees have filed a motion to dismiss the appeal for the reasons: First, that said action is not appealable; and, second, that this court has no jurisdiction of the action on appeal. The litigation grows out of a controversy over the devolution of the property of one Stephen B. Miles, deceased. After the death of the decedent, an instrument purporting to be his last will and testament was duly presented for allowance and probate to the county court of Richardson county, and after the usual
Appellees’ counsel now urge that the action is not one that is embraced within the scope and object of section 675 of the Code of Civil Procedure, providing for appeals in actions in equity, and therefore not appealable, and that to obtain a review of the trial had in the district court the appellants could only have removed the cause here by a proceeding in error, in its technical sense, in the manner pointed out by statute for review of trial judgments and orders by error proceedings.
It becomes necessary,'then, to inquire whether the case we now have under consideration is an equitable action, within the meaning of section 675 of the Code of Civil Procedure, which says “that in all actions in equity either party may appeal from the judgment or decree rendered or final order made by the district court, to the supreme court of the state,” or whether it is a legal proceeding authorized by some one or more statutory provisions, and reviewable only by proceedings in error.
The motion to dismiss is overruled.
Motion overruled.