Opinion
No. 5426
Opinion Filed September 22, 1913. Rehearing Denied January 6, 1914.
COURTS — Probate Courts — Appeal — Jurisdiction. Under the provisions of section 1820, art. 1, Rev. Laws 1910, and section 6, c. 27, Laws of 1907-08, an appeal lies to the district court from the county court in probate matters.
(Syllabus by the Court.)
Error from County Court, Oklahoma County; John W. Hayson, Judge.
Action between H. C. Rice and Louis M. Theimer and others. From the judgment, H. C. Rice brings error. Appeal dismissed.
Stephen C. Treadwell, for plaintiff in error.
Geo. J. Eacock and W. J. Davidson, for defendants in error.
On September 30, 1912, Elizabeth B. Theimer, as guardian of Louis M. Theimer and others, minors, obtained an order from the county court of Oklahoma county to sell certain real estate belonging to such minors on and after October 26, 1912. Pursuant to such order sale was made, the report thereof filed with the county court, and on the 6th day of November, 1912, the same was confirmed. On January 2, 1913, plaintiff in error, H. C. Rice, filed in the county court of Oklahoma county a petition to set aside the order confirming the sale of said real estate. Thereafter Elizabeth B. Theimer, guardian, filed in the county court a motion to strike said petition from the files, which motion was, by the judge of the county court, sustained, to, which ruling, order, and judgment the plaintiff in error, H. C. Rice, duly excepted and appealed to this court for relief from the alleged errors in such proceeding, and the defendants in error have filed a motion to dismiss said appeal.
Section 6, art. 1, c. 27, Session Laws of 1907-08, with minor changes in language, found at section 1820, Rev. Laws 1910, is as follows:
"In all cases arising under the probate jurisdiction of the county court, appeals may be taken from the judgments of the county courts to the district court of the county in the manner provided by law, and in all cases appealed from county court to the district court, the cause shall be tried de novo in the district court upon questions of both law and fact."
The appeal, under the foregoing statute, lies to the district court, and not to the Supreme Court. Apache State Bank v. Daniels, 32 Okla. 121, 121 P. 237, 40 L. R. A. (N. S.) 901; Barnett, Guardian, et al. v. Blackstone Coal Milling Co., 35 Okla. 724, 131 P. 541.
The motion to dismiss is sustained.
All the Justices concur.