"In the exercise of such jurisdiction, the issues remain the same as in the county court, and amendments which inject new issues on appeal should not be allowed." Parker v. Lewis, 45 Okla. 807, 147 P. 310. 3.
However, for the reasons hereafter discussed, we do not reach this question. It was decided by this Court over fifty years ago in Parker v. Lewis, 45 Okla. 807, 811, 147 P. 310, 311-312 (1915), that although the prescribed method of appeal from the decision of a county court in probate matters is by trial de novo in the district court, the district court can "retry only the same issues of law and fact as were presented to the county court for its determination." The Parker case involved a father who had not requested appointment as guardian of his minor child in the county court but sought this in the district court upon appeal.
Kluver v. Weatherford Hosp. Auth., 1993 OK 85, 859 P.2d 1081, 1083 ("Issues of law are reviewable by a de novo standard and an appellate court claims for itself plenary independent and non-deferential authority to re-examine a trial court's legal rulings."); State ex rel. Okla. State Bd. of Med. Licensure and Supervision v. Rivero, 2021 OK 31, ยถ 42, 489 P.3d 36, 53 (appellate review of a question of law requires an "independent and non-deferential examination applying a de novo standard"); In re Copperfield's Estate, 1932 OK 471, 12 P.2d 490, 492 (defining the phrase de novo as "anew" or "a second time" when used in the phrase trial de novo (quoting Parker v. Lewis, 1915 OK 140, 147 P. 310, 311)).
In re Johnson, 210 Kan. 828, 504 P.2d 217, 221 [1973]; see contra State v. Superior Court for King County, 41 Wn.2d 718, 251 P.2d 603, 605-606 [1952].Gould v. Smith, Okla., 405 P.2d 82 [1965]; Parker v. Lewis, 45 Okla. 807, 147 P. 310 [1915]; In re Johnson, supra 504 P.2d note 5 at 221; Paronto v. Armstrong, supra note 2.Barriner v. Stedman, Okla., 580 P.2d 514 [1978].
" Plaintiffs in error cite Brigman v. Cheney, 27 Okla. 510, 112 P. 993; Parker et al. v. Lewis, 45 Okla. 807, 147 P. 310; and In re Fox' Estate (Warren v. Green), Okla., 365 P.2d 1002, as their authority for the first contention. They rely on the language used in the first paragraph of the syllabus in Brigman v. Cheney, supra, wherein we said: "In the appointment of guardians, the county courts are vested with a sound legal discretion; and their judgments in such cases will not be overruled, unless it is apparent that there has been an abuse of such discretion."
Archer v. High, 193 Miss. 361, 9 So.2d 647, 648; Duncan v. Mack, 59 Ariz. 36, 122 P.2d 215, 217. A venire de novo is a writ for summoning a jury for the second trial of a case which has been sent back from above for a new trial. Slaughter v. Martin, 9 Ala. App. 285, 63 So. 689, 690; Parker v. Lewis, 45 Okla. 807, 147 P. 310, 311."
district court to pass on the issues previously presented, and determined by the county court's order of August 29, 1957. We do not agree with appellees' position. Without regard to whether appellant had a statutory right, and/or preference, as against Rutherford, or anyone else, and especially persons not related to the incompetent, to be appointed her guardian, either as a relative and/or as a testamentary nominee under Title 30 O.S. 1951 ยง 12[ 30-12], paragraphs 4 and 2 โ which claimed right we do not herein determine (but notice Wallace v. Williams, 156 Cal.App.2d 646, 320 P.2d 211, and Ned v. Robinson, 181 Okla. 507, 74 P.2d 1156, certiorari denied 304 U.S. 550, 58 S.Ct. 1054, 82 L.Ed. 1522, rehearing denied 305 U.S. 669, 59 S.Ct. 58, 83 L.Ed. 434; Boylan v. Kohn, 172 Ala. 275, 55 So. 127, 129, Muse v. Muse, 76 Miss. 372, 24 So. 168, and other cases cited in the annotation beginning at 21 A.L.R.2d 880, cited in McCartney v. Merchants Planters Bank, 227 Ark. 80, 296 S.W.2d 407; Parker v. Lewis, 45 Okla. 807, 147 P. 310, 313, and In re Coburn, 165 Cal. 202, 131 P. 352; as to similar matters see In re Guardianship of Hight, 194 Okla. 214, 148 P.2d 475), we think that, under our statutes on probate appeals, appellant had a right to appeal to the district court and obtain a trial de novo and review there of that part of the county court's order determining that: "* * * it is and will be to the best interest of Maude Cole * * * that some person, other than a member of * * * (her) family * * * be appointed as successor guardian * * *". Of course that part of the order appointing Ross Rutherford pertains to a matter that is now moot, but appellees do not contend that said part is not separable, or divisible, from the part purporting to bar members of the incompetent's family from appointment, on the ground of said ward's best interest. The appellant, as a member of the ward's family, had a right to an appellate determination of whether or not that was a valid and subsisting ground (under facts to be presented t
The county court under such remand should have exercised its exclusive and original jurisdiction to determine the question of removal or suspension of Ida Mae Jones and the appointment of her sucessor. Parker et al. v. Lewis, 45 Okla. 807, 147 P. 310; In re Kelly's Estate, 132 Okla. 21, 269 P. 282. Upon Ida Mae's refusal to relinquish possession and control over certain items of property she claimed belonged to her personally, rather than to the estate, Dewey Dinwiddie obtained an order directing her, as administratrix with the will annexed, to institute an action against Ida Mae in a court of competent jurisdiction to determine the question of title Ida Mae had raised.
Without doubt, such a preference right may be waived in writing or by a written request for appointment of another. Parker et al. v. Lewis, 45 Okla. 807, 147 P. 310; Crosbie et al. v. Brewer et al., 68 Okla. 16, 158 P. 388. But there was no such writing or request in the case at bar.
[1] What is meant under our statutes by a trial "de novo"? The literal meaning of the word is a second time. Parker v. Lewis, 45 Okla. 807, 147 P. 310. Or in the same manner; with the same effect. Powell v. Nevada, C. O. Ry., 28 Nev. 305, 82 P. 96. We have had a somewhat similar question under consideration in the case of Davis v. Campbell, 24 Ariz. 77, 206 P. 1078, 1081, and said, quoting from McCall v. Marion County, 43 Or. 536, 73 P. 1030, 75 P. 140: