Roddy v. Estate of Fitzgerald

Buttles, J. The plaintiff’s claim against the defendant estate in the sum of $333.16 was disallowed by the commissioners, and their report having been returned to probate court the plaintiff applied in writing for an appeal therefrom “to the County Court to be holden at City of St. Albans within and for the County of Franklin, on the 14th day of September, A. D. 1943.” P. L. 3006, under which the plaintiff attempted to proceed, provides that such appeal may be taken “to the county court.” The appeal having been entered in County Court after notice given, the estate in due course filed a general appearance and answer and thereafter a motion to dismiss the appeal on the ground that the court was without jurisdiction and authority to entertain the same. The motion was denied, exception granted, and hearing had on the merits. At the conclusion of the evidence the motion to dismiss was renewed, again denied and exception granted. In this Court the Estate relies upon its exceptions to the denial of its motion. This case is very similar in its facts and in the question *474 presented to In Re Walken Trust Estate, 112 Vt 148, 22 A2d 183, although in that case the appeal was attempted to be taken under P. L. 3005 from an order of the probate court allowing the account of a testamentary trustee, while in this case the attempted appeal was from the decision and report of commissioners under P. L. 3006. However the history of P. L. 3006 is exactly parallel with that of P. L. 3005 as set forth in the Walker case. The chánge made by R. L. 2071 in the previously existing law with respect to designating the court to which appeals from the decision and report of commissioners were to be taken was the same as the change made by R. L. 2070 with respect to appeals from an order of the probate court, except that the words “in the county” were retained in Sec. 2071 but not in Sec. 2070. This difference is immaterial and does not appear in subsequent revisions. Number 28 of the Acts of 1892, omitting from the notice required to be given the designation previously required of the session of the court to which the appeal is taken, is equally applicable to appeals of the one class or of the other. The present case is governed by our decision in the Walker case unless it is to be differentiated therefrom, as is claimed by the plaintiff, by one or both of the following facts: (1) that here application was made and allowed for an appeal “to the County Court to be holden at City of St. Albans within and for the County of Franklin, on the 14th day of September, A. D. 1943,” while in the Walker case the application was for an appeal to the next stated term of Addison County Court to be holden at Middlebury within and for the County of Addison on the 3rd day of December, A. D. 1940; or (2) that in the present case there was a general appearance and answer filed by the defendant prior to the making of the motion to dismiss, while in the Walker case there was a special appearance only, by the appellee. We take judicial notice that the 14th day of September, 1943, was the second Tuesday of September and the day on which the September term of Franklin County Court was appointed by P. L. 1374 to be held. The application was therefore, in effect, for an appeal to the September 1943 term of the county court and not to the county court generally, as authorized by P. L. 3006. See In re Walker Trust Estate, supra, as to the invalidity of such an attempted appeal. *475 The plaintiff contends that the nature of the appeal is governed by the order of the probate court for its allowance rather than by the application therefor. It is to be noted, however, that the court’s order reads: “The foregoing prayer for an appeal and declaration having been presented here to this Court * *It is ordered that said appeal be and the same is hereby allowed.” It is obvious that the appeal allowed is the same as the appeal for which application was made. The balance of the court’s order is merely a direction, in accordance with P. L. 3013, as to the manner in which notice of the appeal shall be given, together with a correct recital of the time allowed by P. L. 3007 for entering the appeal and for appearance by the appellee. The second claimed distinction between the present case and the Walker case raises only the question whether here the court’s lack of jurisdiction was an infirmity that could be waived. Unquestionably the filing of a general appearance and an answer by the defendant constituted such waiver if the infirmity was one which could be waived, since the rule requires dilatory pleas and motions to be filed at the earliest opportunity. Coolbeth v. Gove, 108 Vt 499, 503, 189 A 858; Andrew v. Buck, 97 Vt 454, 457, 124 A 74; Lyman v. Central Vt. R. R. Co., 59 Vt 167, 175, 10 A 346; Snow v. Carpenter, 49 Vt 426, 434. A court of probate does not proceed according to the common law, but has a special and limited jurisdiction given by statute, and if it appears on the face of the proceedings that it has acted in a manner prohibited or not authorized by law its orders and decrees are absolutely void and may be treated as a nullity. Nothing is to be presumed in favor of its jurisdiction and such jurisdiction must be made affirmatively to appear by one who seeks to take advantage of its proceedings. Probate Court v. Indemnity Ins. Co., 106 Vt 207, 210, 171 A 336; Barber v. Chase, 101 Vt 343, 351, 143 A 302; White’s Admr. v. White, 91 Vt 74, 77, 99 A 305. Furthermore in the absence of a constitutional requirement there is no such thing as a right of appellate review independent of a statute granting the same. What we speak of as such is a mere legislative privilege to be granted or withheld as may seem best to the law making body. In Re Walker Trust Estate, 112 Vt 148, 151, 22 A2d 183; Miles Block Co. v. Barre & Chelsea R. R. Co., 96 Vt 526, 527, 121 A 410. *476 On appeal the county court sits as a higher court of probate with co-extensive jurisdiction. Everett v. Wing, 103 Vt 488, 493, 156 A 393; In re Partridge’s Estate, 102 Vt 9, 14, 144 A 861. There is, consequently, the same necessity for an affirmative showing of jurisdiction after as there was before the appeal came to the County Court, because the appellate jurisdiction of that court can be no more extensive than the original jurisdiction of the probate court. The requirements of a valid appeal are statutory and the jurisdiction (“the power to hear and decide,” In re Camp, 94 Vt 455, 457, 111 A 565, 566) of the court to which the appeal is taken depends upon a compliance therewith and cannot be conferred by agreement or waiver, express or implied. Essex Storage Elect. Co. v. Victory Lumber Co., 93 Vt 437, 443, 108 A 426; Andrew v. Buck, 97 Vt 454, 456, 124 A 74. If there is no statutory authority for the allowance of this appeal, nothing passed to the County Court for review. Hodge’s Admr. v. Hodge’s Estate, 90 Vt 214, 216, 97 A 676. This is merely an application of the rule that process which is in violation of law is void and confers no jurisdiction. Howe v. Lisbon Sav. Bank, 111 Vt 201, 208, 213, 14 A2d 3; Ramsay v. McDonald, 108 Vt 180, 181-2, 184 A 691. Indeed the term “process,” in its broad significance, applies to an appeal, for it includes all proceedings from the beginning to the end of a cause. Rich v. Trimble, 2 Tyler 349, 350. P. L. 3002 gives the County Court appellate jurisdiction of matters originally within the jurisdiction of the probate court, but this section must be read in connection with P. L. 3006 which prescribes the method in which the appeal must be taken. By prescribing a certain method of doing so all other methods are excluded and forbidden. The appeal in the present case was in violation of statute and void. It did not empower the County Court to exercise authority derived from law. Howe v. Lisbon Sav. Bank, 111 Vt 201, 208, 14 A2d 3. This case is readily distinguishable from cases like Mack v. Lewis, 67 Vt 383, 31 A 888. There an appeal regularly taken from the judgment of a justice court was not entered in County Court within 21 days thereafter and it was held that this was a defect that could be waived. Here, however, we are concerned with “the taking and allowance of the appeal rather than with the sub *477 sequent steps necessary to perfect the same.” In re Walker Trust Estate, 112 Vt 148, 152, 22 A2d 183, 185. The judgment is reversed and the plaintiff’s appeal to the County Court is dismissed. To he certified to the Prohate Court for the District of Franklin.