Wilson v. Brown's Administrator

21 Mo. 410 | Mo. | 1855

Ryland, Judge,

delivered the opinion of the court.

Hamilton, as administrator of the estate of Wm. Brown, deceased, made application to the county court of Jasper county, for the sale of lands of said estate, for the payment of debts. An order was made directing the sale of certain lands, or so much thereof as might be necessary for the payment of the debts of the estate.

The administrator made sale of the lands. Upon the presentation of his report of the sale, the appellants appeared in the county court, and filed their objections to the report. Wilson showed himself interested as a creditor, and Rickner and wife as heirs of the deceased.

Tbe county court overruled tbe objections, and approved tbe report. Tbe objectors then appealed from this order of tbe county court approving tbe sale by tbe administrator to tbe Circuit Court. In tbe Circuit Court, upon tbe calling of tbe case, Hamilton, tbe administrator, moved tbe court to dismiss the appeal, because no appeal lies from tbe judgment of tbe county court approving tbe report of an administrator’s sale of real estate. Tbe Circuit Court sustained this motion, dismissed tbe appeal, and rendered judgment against tbe appellants for costs. The appellants excepted to this decision of the court, filed their motion to set aside tbe order dismissing tbe appeal, -which, being denied, they excepted, and bring tbe case by appeal to this court.

1. Tbe only question in this case is, will an appeal lie from tbe order of tbe county court, approving an administrator’s sale of real estate, to tbe Circuit Court? If this question be answered in tbe affirmative, then tbe Circuit Court erred in dismissing tbe appeal. In tbe 8th article of tbe act concerning “ Administration, ” (R. C. 1845, sec. 1,) we find that “appeals shall be allowed from tbe decision of tbe county court to the Circuit Court, in tbe following cases” (after enumerating five classes, tbe sixth is as follows) : “On all orders for tbe sale of real estate or slaves.” Here is authority expressly on the subject. It will not do to limit tbe appeal to tbe first order made in regard to tbe sale — to the order directing tbe sale only, and not to any other orders made concerning such sale. We read tbe sixth clause thus : “On all orders concerning tbe sale of real estate,” and do not confine tbe right to appeal, to the order making it tbe duty of tbe administrator to sell. Before the county or Probate Court will order tbe sale of real estate, it becomes tbe duty of such court to order all persons interested in tbe estate to be notified of tbe application for such sale. Why is this done ? That persons interested may, if they think fit, be present to defend their interests. If tbe county court shall refuse to approve the proceedings and report of tbe administrator upon such sale, tbe proceedings shall be void, and a new sale may be ordered. (R. C. 1845, tit. Administration, art. 3, § 24, 33, p. 86, 87.)

The Circuit Courts have appellate jurisdiction from the judgments of the county courts, in all cases not expressly prohibited by law, and possess a superintending control oyer them. (R. C. 1845, tit. Courts — judicial power, p. 330.)

We then answer the question in this case in the affirmative, having not the least doubt that an appeal will lie in this case from the county court to the Circuit Court. In this opinion, we have confined ourselves alone to the one question. We do not intimate our opinion on the merits of the controversy, having nothing to do with that part of the case as it now stands before us. The judgment of the Circuit Court, dismissing the appeal from the county court, is erroneous, and must be reversed, and the cause remanded;

Judges Scott and Leonard concurring.