Bellinger v. Ingalls

Steahan, C. J.— Counsel for respondent did not file a motion to dismiss this appeal, but a preliminary objection was taken by him to the consideration of this case for the reason that the order or judgment complained of was not appealable. Nor does it appear that any objection was made in the court below to the consideration of the appeal from the county court. On the argument here, however, it was assumed by counsel on both sides that if the order was not appealable there was no case presented for the consideration of this court, and to that question our attention will first be directed. [193] Section 535, Hill’s Code, defines the character of order or judgment from which an appeal may be taken thus: “A judgment or decree may be reviewed as prescribed in this title, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right, and made in a proceeding after judgment or decree for the purpose of being reviewed, shall be deemed a judgment or decree.” The question therefore is, whether or not the order of the county court refusing to distribute the money in the hands of the executor, or to require the executor to file his final account is a decree within the meaning of this section of the code, and therefore reviewable on appeal. It appears from this record that there are no debts outstanding against the estate of Esther Holladay, and that all the moneys due her estate have been collected except the two outstanding claims referred to above; that a large amount of money is now in the hands of the executor, and that there is no reasonable probability of any further collections. Under this state of facts the denial of the guardian’s application did affect a substantial right for which there is no remedy unless the right of appeal exists. The fact that this application might be renewed again at some subsequent time, is no answer to the appellant’s contention. It might also be denied as often as renewed, and if no appeal lies, the rights of the petitioner, representing the heirs, could never be successfully asserted; at least it would depend largely on the will of the executor when he would be pleased to file a final account. The objection that the executor may by some possibility realize something on the depredation claim, if allowed to pursue it, does not seem to be conclusive, because the decree of the county court on final settlement can pass that claim to the guardian for the use of the children, who can assert the same with like effect as can the respondent. The decree appealed from will, therefore, be reversed, [194] •and the court below is directed to reverse the decree of the county court of Multnomah county appealed from, and to direct that court to require the respondent to file his final account as executor of the last will and testament of Esther Holladay. deceased, and that the same be then disposed of according to law and the usual practice of that court.