Opinion
No. 28,739.
February 5, 1932.
Appeal and error — nonappealable order.
An order of the district court affirming an order of the probate court from which an appeal has been taken is not appealable. An appeal can be taken only from a judgment entered pursuant to such order.
Proceeding in the district court for Wright county by Frank T. Hines, in his official capacity as director of the United States veterans bureau, against the guardian of the estate of Robert Ahlman, an incompetent world war veteran, brought pursuant to a provision of the world war veterans act authorizing the director to appear in the court appointing the guardian and present any claim that the guardian is not properly executing the duties of his trust. The probate court released defendant as guardian from liability for the loss of certain money of her ward deposited in a bank. The director appealed to the district court, where the order of the probate court was affirmed, Giddings, J. From the order so made the director appealed. Appeal dismissed.
J.H. Fraine and E.G. Erlandson, for appellant.
H.S. Whipple, for respondent.
H.S. Whipple, for guardian appealing from disallowance of costs.
J.H. Fraine and E.G. Erlandson, for the director.
The guardian then sought to tax costs and disbursements in this court. The clerk disallowed them on the ground that costs cannot be recovered against the United States acting in its governmental capacity. From the order of disallowance the guardian appealed. Clerk's disallowance of costs affirmed.
This is an appeal from the portion of an order of the district court affirming an order of the probate court wherein it was ordered, adjudged, and decreed that loss of certain moneys deposited in a bank must be borne by the ward and not by the guardian, and releasing the guardian from any liability for any such loss.
This order of the district court affirming the probate court is not appealable. Ebeling v. Bayerl, 162 Minn. 379, 202 N.W. 817. Upon the record, this court is without jurisdiction, and the appeal is dismissed.
On Appeal From Disallowance of Costs.
On March 18, 1932, the following opinion was filed:
United States — action in governmental capacity — costs.
Costs are not taxable against director of United States veterans bureau in proceeding brought by him, wherein he was unsuccessful, against guardian of incompetent veteran, action being one by United States in its governmental capacity and director being merely an agency appointed by the government for that purpose. [Reporter]
Appellant, in his official capacity as director of the United States veterans bureau, brought this proceeding under U.S.C. Title 38, § 450, as amended July 2, 1926 [44 St. c. 723, § 21(2), p. 792] authorizing the director to appear in the court which has appointed a guardian for an incompetent veteran and present to that court any claim that the guardian so appointed is not properly executing the duties of his trust. Appellant appealed to this court from an adverse order of the lower court, and the appeal was here dismissed. 185 Minn. 650, 240 N.W. 890. Respondent, the guardian of the incompetent, sought to tax costs and disbursements in this court. The clerk disallowed and refused to tax same on the ground that costs cannot be recovered against the United States acting in its governmental capacity, and respondent appealed from such disallowance.
The proceeding is not brought in the name of the United States; but it is apparent that it is a proceeding by the federal government, in its governmental capacity, to carry out and enforce its laws granting compensation to disabled war veterans. It is not an action to recover property owned by or damages due to the United States. The fund which the guardian was asked to account for did not belong either to the United States or the appellant and was not claimed by either of them. The appellant was only the agency of the government appointed by it to bring the proceeding.
The case of State v. Buckman, 95 Minn. 272, 104 N.W. 240, 289, was a civil action by the state to recover damages for trespass upon its lands and is not here in point.
State v. Fullerton, 124 Minn. 151, 144 N.W. 755, was an action by the state to recover certain money claimed to be the property of the state. It is there pointed out that the action was not one brought by the state in its governmental capacity.
The present proceeding being brought by the federal government in its governmental capacity and appellant being merely the agency appointed by the government for that purpose, respondent is not entitled to recover costs.
It is suggested that while respondent may not be entitled to recover costs against the government she may recover against the surety company which gave a surety bond on appeal. That question is not before us on this appeal.
Disallowance of costs affirmed.