Reed v. Hughes

McCLELLAN, J. This appeal is sought to be rested upon, and to be effectively made from, an order of the probate court setting aside a sale of real estate, because of inadequacy of price bid at the sale, and ordering a resale; the sale of the land having been decreed by the court for the purpose of dividing the proceeds between tenants in common, the inability to have partition in kind being alleged and shown. (1, 2) The order sought to be here reviewed is purely interlocutory, and not final; and no particular statute authorizing an appeal from such an order is known to us or has been brought to our attention. Sections 2855 and 2856 of the Code of 1907 do not authorize appeals from orders of the character here undertaken to be revised. The remedy whereby review may be had of the conclusion attained and effected by the probate court is certiorari, with a bill of exceptions. Section 4867, Code 1907. (3) According to the clear language and effect of sections 5226 and 2642 of the Code of 1907, the probate court is jurisdictioned to determine, on the issue of confirmation vel non, whether the highest price bid is not greatly less than the land’s real value. — Code, § 2642. The appeal is not authorized. It must be dismissed. Appeal dismissed. Anderson, C. J., and Sayre and Gardner, JJ., concur.