Orth v. Walters

IlATXAM, J. Plaintiffs brought into tbe district court an instrument purporting to constitute them trustees of certain property, submitted what purported to be tbeir final account as such trustees, and asked for its allowance and for an order fixing tbeir compensation, and for distribution of tbe residue and for tbeir discharge. On tbe bearing of tbeir petition, defendants objected that tbe trust agreement was [132] testamentary in character and invalid because not executed with the formalities of a will, that the grantor was incompetent, and they put plaintiffs to proof as to the correctness of the account. On the hearing the court made an order, reciting that the parties had agreed that the only question to be determined by the court was whether the instrument was a deed of trust or an instrument, testamentary in character, and then proceeded to find that the instrument was a trust deed, not testamentary in character, ordered that further hearing might be had on ten days-’ notice by either party, and ordered a judgment to be entered. From this order an appeal is taken. The final account was not allowed. No distribution was ordered. While the order provided for further hearing, the purpose of the hearing it did not state. It may be doubted if the order is anything more than a ruling on the effect of evidence. Surely it is not more than an order 'for judgment, and not a final judgment at that. In no aspect is it an appealable order. The appeal must therefore be dismissed. Appeal dismissed.