In re Rose's Estate

This is an appeal by an administrator from a decree settling his account. When the account was rendered, written grounds of contest were filed; and after trial, at which witnesses were examined, the judge of the superior court made findings and a decree whereby it was adjudged that the account presented was not correct, and that the administrator owed the estate more money than the balance of his account showed. The appeal was taken within sixty days after the entry of the decree, but not within sixty days after the announcement of the decision and the filing of the findings. There was no motion for a new trial.

The respondent contends that the question as to the sufficiency of the evidence to sustain the decision cannot be considered; and we think this position must be sustained. It is not necessary to decide whether a motion for a new trial would have been a proper remedy. Section 939 of the Code of Civil Procedure provides that “an exception to the decision or verdict on the ground that it is not supported by the evidence cannot be reviewed on an appeal from the judgment unless the appeal is taken within sixty days after the rendition of *51 the judgment. ” If the appeal be…

I dissent. I do not think that the action of a court in settling an administrator’s account was intended to be included in the provisions of section 939 about an appeal from “a final judgment in an action or special proceeding.” It is simply a probate order, and an appeal from it is specifically provided for in subdivision 3 of section 963. And, in my opinion, if an appeal be taken from such an order within the sixty days after the order has been entered, as provided in section 1715, the sufficiency of the evidence to sustain the decision may be considered.