Opinion
Syllabus by the Court
1. K.S.A. 59-2401 and K.S.A. 60-2103a are construed and applied.
2. An appeal pursuant to K.S.A. 59-2401 from an order entered by a district magistrate judge in a probate matter may be taken within 30 days.
George Voss, Dodge City, for appellant/cross-appellee Richard W. O'Neill, II.
Philip Ridenour, of Ridenours&sRidenour, Cimarron, for appellees/cross-appellants Jacqueline Verity and Margaret Romagnoli.
Glenn I. Kerbs, of Patton, Kerbss&sHess, Dodge City, for executor.
Before ELLIOTT, P.J., and LEWIS and GREEN, JJ.
ELLIOTT, Presiding Judge.
This matter is before the court in response to a show cause order issued to verify jurisdiction.
We retain the appeal.
Richard W. O'Neill, II, appeals a district court order construing a will (the district court affirmed the district magistrate judge's order construing the will). A cross-appeal was also filed by Jacqueline Verity and Margaret Romagnoli from the district court's denial of their motion for attorney fees.
The magistrate judge's order of final settlement was filed on March 15, 1995; O'Neill filed his notice of appeal on April 5, 1995. Thus, the question sought to be resolved by our show cause order is whether the notice of appeal to the district court from the magistrate's order must have been filed within 10 days or 30 days. We have found no Kansas case law directly addressing the issue.
K.S.A. 59-2401(a)(24) provides that an appeal may be taken within 30 days from the entry of a final order, decision, or judgment in any probate proceeding. The statute is silent as to whether it applies to both magistrate and district judge orders in probate proceedings.
However, K.S.A. 59-2401(c) states: "Except as otherwise provided in this section, appeal taken pursuant to this section shall be taken in the manner provided by chapter 60 of the Kansas Statutes Annotated for other civil cases." (Emphasis added.)
K.S.A. 60-2103a provides that except as otherwise provided by law, appeals from district magistrate judges must be taken within 10 days. We hold that any probate order appealed pursuant to K.S.A. 59-2401 may be taken within 30 days regardless of whether the order was signed by a magistrate judge or a district judge. Kansas counsel have long relied on the Kansas Bar Association's Estate Administration handbook for guidance. That treatise states that while a chapter 60 notice of appeal from a magistrate judge's order must be filed within 10 days, an appeal from an order or decision of a magistrate judge in a chapter 59 probate matter may be taken within 30 days. See Kansas Estate Administration § 4.32, p. 4-12 (KBA 6th ed. 1993).
The appeal was timely. Appeal retained.