The opinion of the court was delivered by
Rowell, J.The subject-matter of the former litigation was not the same as the subject-matter of this. There the question was, whether an appeal had been properly taken and entered. Here the question is, whether the petitioner has been deprived of taking an appeal by fraud, accident, or mistake. The result of the former litigation necessitated a resort to this proceeding, and. it would be strange to hold the matter to be res judicata.
It is further objected that the petitioner has no right of appeal, for that it does not appear that he is a creditor of the estate. It is not claimed that he was otherwise interested in the estate. The County Court had evidence before it from which it might have found that he was a creditor; and as it could not legally have rendered the judgment it did without such finding, it is to be presumed that it did so find, nothing to the contrary appearing.
The facts bring this case within the purview of s. 1426, R. L., which gives the County Court power, in its discretion, to grant leave to enter an appeal from the Probate Court; and for aught that appears, the court granted the leave in the exercise of that discretion, and hence its decision is not revisable here.