Wolff v. Wohlien

Dryden, Judge delivered the opinion of the court. It appears from the record that, in August, 1842, Diedericli Wohlien died seized of three and a half acres of land in commons of St. Louis — the property in controversy — leaving a widow, Ann Wohlien and one child (the respondent, L. Rudolph Wohlien,) his only heir. Soon thereafter, his widow and the appellant Wolff were appointed the administrators of the estate by the St. Louis Probate Court; and at the March term, 1845, of said Probate Court they procured an order for the sale of the real estate to pay the debts of the deceased; and at the June term, 1845, they sold the same at auction, when Ann Wohlien, the widow and administratrix, became the purchaser of the premises in controvery for the sum of four hundred and twenty dollars. A report of the sale was made by the administrators to the Probate Court and approved at the same term at which the sale was made. No further action of the court in regard to the sale or report was had until that hereinafter mentioned. In 1846, Mrs. Wohlien sold the premises in controversy to Mrs. Speck, the appellant. About the year 18 — , a final settlement of the estate was made by the administrator, and soon thereafter Mrs. Wohlien died. At the June term, 1857, of the Probate Court, the appellants, Mrs. Speck and John Wolff, presented their petition praying-said court to approve said sale — they having first notified the respondents of their intention to present the petition, and its [131] purpose. The respondents appeared and answered the petition, urging numerous reasons why the sale should not be approved, but not necessary for the purposes of the case to be stated here. A trial was had, and the court took the case under advisement until the September term, 1857, when it made an order approving the sale, from which the respondents appealed, without any bill of exceptions, to the Land Court, where, by consent, the venue was changed to the Circuit Court, in which a trial anew was had, which resulted in an order reversing the judgment of the Probate Court, and disapproving the said sale, from which the appellants appealed to this court. Prom the view we have taken of the question of the jurisdiction of this court we shall be obliged to forego an investigation of the merits, and suffer the case to stand where the Circuit Court left it, and we -might content ourselves with the disposition of the question of our own jurisdiction ; but as the counsel have discussed in the argument several other questions of jurisdiction, and desire us to give our opinion upon them, we will do so in the order in which the questions arise in the progress of the case. 1. When the case reached the Circuit Court by appeal, the appellants in this court, Speck and Wolff, respondents there, presented the question, and urge it in this court, “ Does an appeal lie from the Probate to the Circuit Court, from an order of the former approving a sale of real estate made by an administrator to pay debts ?” The question is made upon the phraseology of the sixth subdivision of the first section of the eighth article of the administration law of 1835, (R. C. 1835, p. 63,) which reads as follows, in its connexion with its head: § 1. “ Appeals shall be drawn from the decision of the County Court [Probate Court] to the Circuit Court in the following cases.” “ Sixth. On orders for the sale of slaves and real estate.” The appellants make a distinction between the order of sale and the succeeding order approving the sale, and insist that while an appeal is given from the first order it is denied [132] the second. The same question was before this court in the case of Wilson et al. v. Brown’s administrator, (21 Mo. 410,) and the same distinction was attempted to be made, when Judge Ryland, in delivering the opinion of the court, said: “ It will not do to limit the appeal to the first order made in regard to the sale to the order directing the sale only, and not to any other orders made concerning such sale.” “ We read the sixth clause thus : £ On all orders concerning the sale of slaves and real estate.’” The court further says: ££ We, then, answer the question in the case in the affirmative, having not the least doubt that an appeal will lie in this case” — a case of an appeal from an order approving an administrator’s sale. But the appellants object to Wilson v. Brown as authority in this case, because the opinion was made under the law of 1845, which changes the law of 1835, which, it is urged, governs the appeal in-this case by adding to the twelfth subdivision of the section classifying the cases in which an appeal shall be allowed the following words, viz: “ And in all other cases where there shall be a final decision of any matter arising under the provisions of this act.” (R. C. 1845, p. 106.) It is true the case of Wilson v. Brown was decided under the law of 1845, but it is likewise true the decision was distinctly based upon the construction of the sixth subdivision of the section, which is identical with the corresponding sub-division in the law of 1835, without the slightest allusion to the additional words in the twelfth subdivision as a ground of support. We, then, concur with the court in the case of Wilson v. Brown in answering the question that an appeal does lie from the Probate to the Circuit Court on orders approving the sale of real estate to pay debts. 2. The proceedings for the sale of the land, it will be observed, were initiated under the law of 1835, by which the Circuit Court as to cases brought from the County Court was merely a court of review for the trial of questions arising upon the record, (R. C. 1835, p. 63,) and not a court for the trial of questions of fact de novo, as under the law of 1845 and 1855. The trial of the motion to approve was had [133] in the Probate Court, and the appeal taken, without any bill of exceptions, while the law of 1855 was in force, and just as if the proceedings had all transpired under this law. In this state of the case, the question is made by the appellants whether there was anything brought into the Circuit Court by the appeal which it could lawfully try, and whether it ought not to have dismissed the appeal on appellants’ motion. This involves the question whether the law in force at the commencement of the proceeding, or that at the time of the trial shall, determine the manner of the appeal and the jurisdiction of the appellate court. This question is answered by section 16, ch. 101, R. C. 1845, p. 698, and carried into the revision of 1855 in these words: “ § 16. No action, plea, prosecution, civil or criminal, pending at the time any statutory provision shall be repealed, shall be affected by such repeal, but the same shall proceed in all respects as if such statutory provision had not been repealed, except that all such proceedings had after the time of taking effect of the revised statutes shall be conducted according to the provisions of such statute, and shall be in all respects subject to the provisions thereof so far as they are applicable.” We say, then, that the law in force at the time of the trial was the law that controlled the appeal, and that in this case the appeal was' well taken, and the Circuit Court properly refused to dismiss it. 3. The last question for our consideration made by. the respondents is, “ is the order of the Circuit Court disapproving the sale such a final decision as may be appealed from?” The law requires the executor or administrator, at the next term, after the sale, to make a full report of his proceedings, (R. C. 1835, p. 53, § 20,) and “ § 21. If such report and proceedings of the executor or administrator be not approved by the court, his proceedings shall be void, and the court may order a new sale, upon which the same proceedings shall be had as upon the original order,” “ § 22. If such report be approved, the sale shall be valid,” &c. [134] It is plain to be seen, that until a sale of the estate proposed to be sold is approved by the court, it still retains its power and jurisdiction over the subject of the proceedings, and while this is the case, it cannot be said there has been any final decision. It may be likened to the judgment of a court granting a new trial which it requires; the citing of no authority to prove is not such a final decision as may be appealed from, or to the refusal of a Probate Court to order distribution which has been held by this court not to be such final decision as may be appealed from. (18 Mo. 246.) We are clearly of the opinion no appeal lay in this case from the judgment of the Circuit Court disapproving the sale, and that its judgment must stand. The appeal from the Circuit Court is therefore dismissed. Judge Bay concurring ; Judge Bates not sitting.