McDade v. McDade

McDade v. McDade. Sale of Lands for Partition among Tenants in Common. 1. Limitation of appeal. — Six months is the limitation of an appeal from a decree rendered by a judge of probate, ordering a sale of lands for partition among tenants in common. (Eev. Code, §§ 3121), 2247, 2244, subd. 6 a.) Appeae from a decree rendered by the judge of probate of Montgomery county, in the matter of the petition of Charles McDade, asking an order for the sale of certain lands, belonging to himself and others as tenants in common, for partition, or equitable division among the parties in interest. The petition was filed on the 4th October, 1874, and was set for hearing on the 14th November following; and on that day an order or decree was made, granting the prayer of the petition, and appointing commissioners to make the sale. This order, however, was set aside, and another order of sale was granted, on the same petition, on the 4th December, 1874; and no sale having been made under this order, another order was granted on the 11th October, 1875. Under this last order, a sale was made by the commissioners; and their report of the sale was ratified and confirmed by the judge of probate on the 24th November, 1875. The appeal was sued out by the defendants, on the 5th September, 1876, “from the orders, judgment, and decrees rendered in said cause by said court.” The appellee submitted a motion to dismiss the appeal, on the ground that it was barred by the statute of limitations. D. Cpopton, for the motion. D. S. Troy, contra. [MAJORITY — MANNING, J.] MANNING, J. By section 2247 of the Revised Code, “ any party to a suit or proceeding, aggrieved by a final judgment, decree, or order of the judge of probate, in such suit or proceeding, may appeal to the Circuit or Supreme Court, under the rules regulating appeals from the Courts of Probate,” &c. These rules for appeal, in a case for partition, are contained in clause 6 a, of section 2244, and require that such appeal be taken within six months. More than that time elapsed, after tbe final order in this canse was made, before the appeal was sued out; and it must, therefore, be dismissed.