Tyack v. Tipton

OPINION

By THE COURT.

This is a demurrer to the appeal filed by Oscar U. Tipton, Appellee, for the following reasons:

1. Misjoinder of party appellants.

2. Defendants-appellants, Mildred Pauline Reese and Otilda Susan DeAtley, are estopped from appealing.

3. Plaintiff-appellant, lacks an interest, and capacity to sue, appeal.

The record reveals that the action was instituted in the Probate Court seeking a construction of §10503-17 and §10509-54 GC.

The appeal is designated as one on law and fact, but since this is not a chancery case this Court has no jurisdiction to entertain such an appeal. The Court on its own motion will dismiss the law and fact appeal but will' order the same retained for determination on questions of law only as provided by §12223-22 GC. Since we know of no authority for filing a demurrer in such an appeal we shall treat the same as a motion for the purpose of determining whether the appeal has been properly perfected.

The record discloses that the motion for a new trial was overruled on October 30, 1950, and notice of appeal was filed on November 8, 1950, by George E. Tyack, Administrator, Mildred P. Reese and Otilda S. DeAtley. As the notice of appeal was timely filed all of these appellants are properly before the Court. All errors assigned will be passed upon after the case has been duly presented. The appellants will be granted leave to perfect the appeal on questions of law in accordance with Supplement to Rule VII of this Court.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.