Kent v. Dalrymple

Citations

• 23 Idaho 694
• 132 P. 301
• 1913 Ida. LEXIS 108

Syllabus

<p>Appeal — From Probate Court to District Court — Trial De Novo.</p> <p>1. Where an appeal is taken from the probate court to the-district court in a probate matter on both questions of law and fact, the district court is required to try such matters anew, or de novot upon the issues presented to the probate court. If the district court reverses the probate court on questions of law, the issues of fact are not to be tried; if the district court sustains the probate court, upon questions of law whieh do not require a dismissal of the case, then the questions of fact should be tried by the district court de novo.</p> <p>2. Sec. 5600, Rev. Codes, provides that on the day appointed, or any subsequent day to whieh the hearing may be postponed by the court, any person interested in the estate may appear and fila his exceptions in writing to the account, and contest the same.</p> <p>3. Sec. 5598, Rev. Codes, provides that when an account is rendered for settlement, the court or judge must appoint a day for the settlement thereof, and notice must be given.</p> <p>4. Where issues of law and issues of fact are presented by proper motions and pleadings filed in a cause pending in the probate court, in probate matters, it is the duty of the probate judge to pass upon such issues in the order presented, and it is error for the court to-refuse to determine such issues, and when an appeal is taken to the district court upon issues of law and fact, it is the duty of the district judge to pass upon the same issues tried in the probate court, and the refusal to pass upon such questions is reversible error.</p>