Redman v. Adams

BOND, J. The contention is, that inasmuch as the interlocutory order of sale made hy the probate court was one from which any creditor of the estate was entitled to an appeal to the circuit court, therefore, the latter court erred in dismissing the cause for want of jurisdiction. The statute applicable to such orders unquestionably affords the right to an appeal therefrom to any creditor. R. S. 1899, sec. 278. The difficulty, however, in applying it to this appeal arises from the [536] fact that there is no evidence in the record showing that appellant sustained the relation (alleged in his affidavit), of creditor to the estate in respondent’s hands, and was therefore entitled to such an appeal. The affidavit did not conclusively establish such status, and when the cause was tried in the circuit court, evidence was adduced upon which that court based its dismissal of the suit. As appellant has not brought that evidence up by a bill of exceptions, we must conclude that it justified the judgment of the lower court by disclosing to it that appellant was not a creditor of the estate and, therefore, had not vested that court with any jurisdiction of his appeal. Stern v. Foltz, 152 Mo. 552; Doherty v. Noble, 138 Mo. 25; Wordsworth v. Tanner, 94 Mo. 124; Estes v. Nell, 140 Mo. 639; Pembroek v. R’y, 32 Mo. App. 61; Turley v. Edwards, 18 Mo. App. 676; Bauer v. Cabanne, 11 Mo. App. 114. The judgment of the circuit court is accordingly affirmed. All concur.