The respondents, Selma Becker and George Gappert petition for a rehearing. They were the respondents in this case #6974.
There were two appeals in case #6971. [Post, 103, ante, 90,20 N.W.2d 363, 353.] In #6971 Muhlhauser et al. appealed to the district court from the decree of the county court, that court having assumed jurisdiction to determine the interest of Selma Becker and George Gappert in the estate being probated and having decreed them the estate. The district court upheld the county court and at the same time made certain allowances to Muhlhauser et al. as fees for his attorneys and for the administrator McCagherty. Respondents appealed from the judgment in so far as it made these allowances. These two appeals came up in case #6971.
There was also another case connected with the settlement of this estate. In this second case Muhlhauser et al. appealed. This is our #6974 and is the case involved in this petition for rehearing. This is the appeal these petitioners term "Appellants' Second Appeal." These three appeals arise out of the administration of this estate, and are in addition to the appeal involved in Borner v. Larson, 70 N.D. 313, 322, 293 N.W. 836.
These three appeals, subsequent to the Borner v. Larson case, were briefed by the petitioners in one brief, and they term it "Respondents' Brief on Three Appeals." The only point raised therein by the respondents with reference to the matter involved in what they term "Appellants' Second Appeal" — that is, this case — is that it is an "Appeal from the Memorandum of Decision of the District Court vacating the order and decision of the County Court which decision of the County Court allowed the final account of the Administrator, P.S. Jungers."
The respondents alleged in this brief on the main argument "There was never any Findings of Fact or Conclusions of Law" *Page 100 made by the district court; that there was a "Memorandum Opinion" filed in the case and that "Consequently, this second appeal is from something that which is not appealable, to-wit: The Memorandum of Opinion of the District Judge." This was their argument on the appeal here.
In the opinion we ignored that attitude, for the benefit of the respondents, and determined the issue as it was presented to us upon the record. We do set forth that there were findings of fact and conclusions signed by the court, despite the fact that respondents alleged in their brief no such findings or conclusions were made or signed. We showed how extensive these were, for the court had incorporated the memorandum opinion therein as part thereof. Judging by the brief filed upon argument on appeal, it is very clear respondents had overlooked the certified record of the clerk of the district court showing the findings of fact, conclusions of law and order for judgment.
The record in this case — the findings of fact, which include the "Memorandum Opinion," — shows that one McCagherty was or had been administrator. As we point out in the opinion the county court allowed the final report of McCagherty and entered a decree of distribution accordingly, based upon an alleged stipulation of settlement. A few days thereafter, the court, by order, reversed itself. The appeal is from this order.
Thereafter without any notice the court removed McCagherty and appointed Jungers.
Apparently in an attempt to correct the alleged error in removing McCagherty without notice the county court issued notice and citation to Muhlhauser et al., required them to show cause why McCagherty should not be removed, but this was months after the appeal was taken to the district court in the matter before us now.
When this case was before us for argument the respondents stated specifically:
"The thing the appellants are appealing from, if anything, is merely an "order for a decree or a direction for a decree to be entered." This is not a final order, nor a final decree, and consequently no appeal can be taken therefrom." *Page 101
This is followed by several citations and respondents close their brief by saying, "Consequently this second appeal of appellants must be dismissed."
In this petition filed by respondents, petitioners allege that this court was confused by the "voluminous record." There is a "voluminous record" in case #6971 which we may call the companion case. In that record there may be and probably are papers and records which could have been used in the appeal in this case known as #6974. We pointed out in the main opinion that "the record on this appeal does not show the action of the county court in rehearing its order of May 4, 1942. . . ." We referred to the record in the other case in an attempt to clarify it chronologically. Clearly the voluminous record confused the petitioners with reference to what this record contains.
On this petition for rehearing respondents abandoned entirely the position taken by them in the brief and on argument. No longer do they claim this is an appeal from a "Memorandum Opinion" and that there are no findings of fact or conclusions of law.
The appeals in these cases, the records prepared, and the manner of briefing do not tend toward a proper consideration of separate appeals nor the consideration of separate actions growing out of the same state of affairs. We determine the issues upon the record presented to us in the appeal under consideration. We can not go searching other records.
In the petition for rehearing respondents state:
"The order removing McCagherty recites ample ground for his removal. While it is true the decision of this court undoubtedly is correct the order of the district court was favorable to the appellants. The appellees did not appeal from it. That part of the court's decision affirming the district court is correct and is satisfactory as far as these appellees are concerned. However, it contains dynamite which will breed confusion in future proceedings in the probate court in that it practically says that McCagherty was never legally removed and Jungers was *Page 102 never legally appointed. Appellees suggest that this part of the opinion should be modified so as to conform to the record."
May be "the order removing McCagherty recites ample ground for his removal." We do not know. It is not in the record here.
We fail to see where the opinion will "breed confusion in future proceedings." We say that on the record before us "we are not passing upon the legality of the action of the county court on June 7, 1943 in rehearing the order of May 4, 1942." We say we do not determine any of the issues connected therewith. If McCagherty has been removed and Jungers appointed the records of the county court will show it. There is nothing in this decision which passes on such action or prevents any consideration.
The petition for rehearing is denied.
CHRISTIANSON, Ch. J., and NUESSLE, BURKE and MORRIS, JJ., concur. *Page 103