Gormally v. Simon

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

On November 1, 1909, upon petition by herself, the district court of Silver Bow county made an order appointing Kate Antonioli administratrix of the estate of her husband, Peter Anto *222 nioli, deceased. On December 22, 1909, the respondent, Nat Simon, presented to the court his petition for the removal of Kate Antonioli from her office, on the ground that since her appointment she had become ill and of unsound mind to such an extent that she was wholly incompetent to administer the affairs of the estate, and asking that he be appointed in her stead. This petition was accompanied by a written request signed by six of the daughters of the deceased, all sui juris, that it be granted. Before the hearing thereon, and on January 10, 1910, P. T. Gormally, the appellant, presented his petition ashing that he be appointed. This petition was accompanied by a written request by Kate Antonioli that she be allowed to resign and that Gormally be appointed in her stead. The court first accepted the resignation of Kate Antonioli. Thereupon the petitions were heard together, as required by section 7441, Revised Codes, with the result that on January 31, 1910, the court made an order granting the Simon petition and denying that of Gormally. From this order and from one denying his motion for a new trial, Gormally appealed. No issue was joined as to any fact alleged in either petition, nor was the competency of either applicant drawn in question by written objection.

When the record was filed in this court, the respondent submitted motions ashing that the appeals be dismissed, the first on the ground that it had not been taken within sixty days from the date of the entry of the order, and the second on the ground that a final order in this character of proceeding, wherein no issues of fact are made by pleadings, cannot be reviewed on motion for new trial, and hence no appeal lies from an order granting or refusing such a motion. The first appeal was dismissed on the ground stated in the motion. (Revised Codes, see. 7098; In re Reilly’s Estate, 26 Mont. 358 , 67 Pac. 1121 .) Disposition of the motion to dismiss the second was deferred for argument. Now that counsel have been heard, we have concluded that this appeal must also be dismissed.

While the provisions of the Codes relative to new trials and appeals apply generally to probate proceedings (Revised Codes, see. 7712), controversies which do not arise upon written plead *223 ings authorized or required by statute do not fall within them, because a “new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees” (Revised Codes, sec. 6793), and an issue of fact for the purpose of a trial arises upon formal pleadings (Revised Codes, sec. 6723). As was pointed out in State ex rel. Heinze v. District Court, 28 Mont. 227 , 72 Pac. 613 , the expression “issue of fact” in its broadest sense includes issues raised in any manner, whether upon formal pleadings or not; but as used in section 6793, supra, the expression refers to an issue arising upon formal pleadings only. The general policy of the Probate Practice Act is that all dilatory proceedings in the settlement of estates should be curtailed as far as possible. (In re Davis’ Estate, 27 Mont. 235 , 70 Pac. 721 ; Leach v. Pierce, 93 Cal. 614 , 29 Pac. 235 .) Hence, in these proceedings, unless the statute authorizes and requires formal pleadings, the features of a formal trial are not present, and a motion for a new trial does not lie. In the cases of In re Moore, 72 Cal. 335 , 13 Pac. 880 , and In re Herteman, 73 Cal. 545 , 15 Pac. 121 , the view is expressed that, if every contest in these proceedings were allowed to assume the character of a civil action with all the attendants of a right to a jury trial, motion for a new trial, etc., the result would be much additional complication and delay in the settlement of estates. Hence, in the case of In re Heldt, 98 Cal. 553 , 33 Pac. 549 , in which there was a contest by two petitioners for letters, under a provision of the California Code of Civil Procedure identical with that contained in section 7441, supra, the controversy involving only the question which of the two petitioners was entitled to have letters issue to him, the court held that a motion for a new trial did not lie and dismissed an appeal from an order denying the motion. In that case, as in the case of In re Bauquier, 88 Cal. 302 , 26 Pac. 178, 532 , the court plainly intimated that new trials in probate proceedings are proper only in cases involving issues arising upon pleadings authorized by the Codes. This intimation, we think, indicates the correct rule. In so far as section 7441, supra, does not authorize issues upon pleadings, it negatives the idea of any other *224 character of hearing than a summary one by the court or judge, without any formalities attending the trial of a civil action. These views are supported by the opinion in the case of Estate of Franklin, 133 Cal. 584, 65 Pac. 1081 , wherein the court, speaking through Mr. Justice McFarland, after a discussion of all of the provisions of the Code cited supra, reaches the conclusion that a motion for a new trial does not lie to review an order made by a superior court sitting in probate, settling the first annual account of an executor. In such cases a bill of exceptions may be reserved and a review of the action of the court be had upon an appeal from the final order.

We are of opinion that where two ex parte applications for letters of administration, as here, are heard together, and no issue is joined as to the competency of either of the parties to act as such administrator, a motion for a new trial does not lie. Hence, there is no appeal from an order denying such a motion. Dismissed.

Dismissed.

Mr. Justice Smith concurs. Mr. Justice Holloway, having b'een absent, did not hear the argument and takes no part in the foregoing decision.