Hagan v. Sullivan

STEWART, J.

The original opinion rendered in this case was filed June 22, 1912. A petition for rehearing was filed and granted. The petition for rehearing is based upon the judgment and decree of the trial court, wherein the trial court adjudged “that the petition for revocation of probate of will be dismissed; that the judgment hereinbefore rendered in the probate court of Custer county, Idaho, on said petition of revocation of will be set aside; that the costs of all the parties to this proceeding and expenses thereof be paid by the contestant.”

That judgment was affirmed upon the record that was presented to this court upon appeal. The record showed that the will of Patrick Moyna was probated on the 23d day of March, 1910, and that on the 22d day of April, 1911, a petition was filed by Hugh P. Hagan to revoke the order of the probate judge made on the 23d day of March, 1910, probating the will of Patrick Moyna. From the record the petition filed April 22d, 1911, to revoke the will of Patrick Moyna, probated on March 23, 1910, was not within one year, as provided in sec. 5318, Rev. Codes.

Upon rehearing there was filed in this court an affidavit made by G. B. Baldwin, probate judge of Custer county. Accompanying this affidavit and made a part thereof, were certain orders made by J. G. Finnell as probate judge, with reference to the probation of ‘the will of Patrick Moyna. From the affidavit and record it appears that the order admitting the probate of the Patrick Moyna will was filed and entered on the 23d day of April, 1910, and not made on the 23d day of March, 1910, as shown by the record before the court when the original opinion was written. The record also shows, as it did at the former hearing, that the petition to revoke said will was filed on April 22, 1911.

The record being in this condition, we are satisfied that this court was misled by the record on appeal upon which the original opinion was based, and that the former opinion should be set aside, and the judgment should be reversed.

The trial court is ordered and directed to grant a new trial, and it is further ordered that the case be tried upon the pleadings filed in the probate court and upon the record as corrected and filed in this court on the 29th day of July, 1912, which the clerk of this court is directed to attach to the remittitur sent down in this case. Costs awarded to appellant.

Ailshie, C. J., and Sullivan, J., concur.