Opinion
Opinion Filed November 3, 1954.
Probate Appeal.
1. An appeal under V. S. 47, § 3090 to a stated term of the county court, rather than simply to the county court, is fatally defective and its allowance confers no jurisdiction on the county court.
Probate Appeal to the Franklin County Court, September Term, 1953, Shangraw, J., presiding. Defendant's motion to dismiss was granted. Affirmed.
George T. Costes and William R. McFeeters for the appellant
John H. Webster for the appellee.
October Term, 1954.
Present: Sherburne, C. J., Jeffords, Cleary, Adams and Chase, JJ.
Proceedings were had under V. S. 47, § 6709 which resulted in an order of commitment by the probate court. An application for an appeal from the order was made which was allowed by that court. The attempted appeal was "to the next term of the County Court to be held at the City of St. Albans, within and for the County of Franklin, on the second Tuesday of September, A. D. 1953." A motion to dismiss the appeal was filed. One ground of the motion was, in substance, that the appeal was void because it was taken to a specific term of the county court and not to that court generally. The motion was granted by the county court and exceptions were allowed to this judgment on the motion.
By V. S. 47, § 6715 an appeal from an order entered under § 6709 is to be made in the same manner as provided in § 3090. This latter section provides for appeals generally from probate courts and was formerly P. L. § 3005. It was under this latter section that the appeal was attempted to be taken in the case of In Re Walker Trust Estate, 112 Vt. 148, 22 A.2d 183. For the reasons stated in that case and in the case of Roddy v. Estate of Fitzgerald, 113 Vt. 472, 35 A.2d 668, it is apparent that the application for an appeal in the present case was fatally defective and its allowance could confer no jurisdiction in the county court, because it prays for an appeal to a stated term of the county court, rather than simply to the county court. In Re Moffitt Estate, 116 Vt. 286, 288, 75 A.2d 698.
The judgment granting the motion is affirmed and the appeal is dismissed.