Poessnecker v. Entenmann

Pound, C. Án appeal is prosecuted from an order of the district court dismissing an application by two executors for license to sell real proper ty. At the argument we suggested a doubt whether an appeal would lie in such a proceeding, and a further hearing has been had on that point upon additional briefs. \ Section 675, Code of Civil Procedure, provides that appeals may be brought to the supreme court” by “either party” in “all actions in equity.” That section is the sole authority for review in this court by appeal. Does a proceeding such as the one at bar come within its purview? We think not/ In Seward v. Clark, 67 Ind., 289, it was held that a petition to the court of common pleas for an order to sell real estate to pay debts was not a civil action from which an appeal would lie under general provisions of the law as to appeals. In North Carolina, under a statute providing that when the personal estate of a decedent is insufficient to pay debts the executor or administrator may apply by petition to the superior [410] court of the county where lands of the estate are situated for an order to sell such lands, it is held that such petition is not an action, but a special proceeding. Sinclair v. Mc-Bryde, 88 N. Car., 438; Badger v. Jones, 66 N. Car., 305; Pelletier v. Saunders, 67 N. Car., 261. To the same effect Maxwell, J., in construing our own statute, in McClay v. Foxworthy, 18 Nebr., 295, 298, said: “A proceeding under the statute to sell real estate of the deceased, for the payment of debts against the estate is not, strictly speaking, an action. It is purely a proceeding in rem, where the principal questions involved are, the amount of debts outstanding against the estate, the amount of personal property available for the payment of the debts, and the necessity to sell the land for which license is sought for the payment of the same. The proceeding is not adversary in its character in the sense in which the term is used in an action, as only so much of the estate descends to the heirs as exists after the payment of the debts.” The words “either party” in the section cited clearly indicate an intention to refer to suits of an adversary character, and such causes—those which were maintainable by bill in equity prior to the Code, and not special statutory proceedings more or less remotely analogous thereto—are “actions in equity” within its purview. Barger v. Cochran, 15 Ohio St., 460. The only authority we have been able to find indicating the contrary is Elliot v. Shuler, 50 Fed. Rep., 454, in which it was held that an application for license to sell lands was removable to the federal court. But it is admitted in the opinion in that case that the application was a special proceeding, and the ground on which it was held removable was that “Congress has conferred upon the United States courts jurisdiction to hear and determine all cases and controversies of whatsoever nature that arise between citizens of different states, and authorized parties entitled by Law to apply for the removal of such cases and controversies from the state courts into the United States circuit courts.” Hence we do not think that decision applicable to the present [411] controversy. All judgments and final orders of the district court, whether made in actions, special proceedings, or otherwise, are renewable by petition in error, under section 582, Code of Civil Procedure. That section, not section 675, should be resorted to in such proceedings as the one before us. We recommend that the appeal be dismissed. Barnes and Oldham, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the appeal is Dismissed.