ON PETITION EOR REHEARING.
Potter, Justice.A petition for rehearing has been filed in this case by the defendant in error. The proceeding in this court is to review an order denying the petition of James Barrett, a son of Mary Barrett, deceased, for his appointment as administrator of the estate of said decedent, and granting letters of administration to Mary Barrett, a daughter of the decedent. At the former hearing it was ordered that' the cause be remanded with directions to vacate the appointment of Mary and to appoint James administrator upon his qualifying according to law. (138 Pac. 865). Two petitions for administration of the estate had been- filed; the first by James Barrett, the plaintiff in error, praying that he be appointed administrator, and the second by the other children of the decedent praying the appointment of Patrick C. Barrett, one of the petitioners. Upon the hearing the District Court found that neither James nor Patrick C. was incompetent, but that Mary Barrett was more competent than either of them to handle the estate, by reason of her education, business ability and experience, and it was ordered that she be appointed. At the suggestion of the court when announc*291ing its conclusions, as shown by the former opinion, Mary thereafter filed a petition for her appointment, and without any further hearing letters were issued to her upon the order aforesaid. This court held that it was error to deny the applications of James and Patrick C. when both were found to'be competent; and that one of them, or both, should have been appointed.
The grounds upon which a rehearing is asked are substantially as follows: (1) That an order appointing an administrator is not reviewable in this court on error. (2) That if such an order should be held reviewable, there is nothing here to consider, for the reason stated in the brief filed in support of the petition that it is assigned as error only that the court erred in overruling the motion for new trial, and that such a motion was improper because the finding that both of the two petitioners were competent left no issue of fact to be re-examined. (3) That there is a defect of parties in this court, in that Patrick C. Barrett is not made a defendant in error, and that the court is without jurisdiction to adjudicate his right to the appointment. These questions are raised for the first time by the petition for rehearing, but so far as they relate to the jurisdiction of the court to consider the cause, or to dispose of it by directing the appointment of James, they may and should, we think, be considered, although not discussed or suggested in the brief upon the former hearing. (Ry. Co. v. New Albany &c. Co., 48 Ind. App. 647, 96 N. E. 28; Walter Box Co. v. Blackburn, (Tex. Civ. App.) 157 S. W. 220; State v. Sexton, 11 S. D. 105, 75 N. W. 895).
It is not clear that the point made with reference to the sufficiency of the assignments of error to present any question for review should be considered when suggested for the first time on a petition for rehearing. But counsel for defendant in error are mistaken as to the errors assigned by the petition in error, for it is not true that the only assignment is that the court erred in overruling the motion for new trial. That is the tenth assignment of error. We find in the petition in error nine other separate assignments; *292and under the first three general assignments, respectively, we find statements of several grounds in support thereof in separately numbered paragraphs. The first assignment of error alleges irregularity in the proceedings of the court by which the plaintiff in error was prevented from having a fair hearing in the matter before the court; and under that assignment to show irregularity it is alleged among other things that no petition was filed for the appointment of Mary Barrett; that plaintiff in error was given no opportunity to file objections tó her appointment, or to question her 'competency; that said appointment was made without notice to the plaintiff in error, and was a departure from the established procedure governing the appointment of administrators; that the court was without jurisdiction to make said appointment; that it was made without due process of law; and was not warranted by the pleadings before the court upon the hearing, but the appointment was irregular and void, and an abuse of discretion. The second assignment complaiiis of errors of law in two stated particulars with reference to the admission and rejection of evidence upon the hearing. The third assignment is to the effect that the court erred in several particulars, among them the following: In denying the petition of James Barrett; in appointing Mary Barrett; and in not finding the plaintiff in error to be best entitled to letters of administration. The fourth assignment is to the effect that the findings, decision and judgment of the court are outside the issues and unwarranted by the pleadings. The fifth, that the findings, decision and judgment are not sustained by the pleadings. The sixth, that the findings, decision and judgment are not sustained by sufficient evidence. The seventh, that the decision appointing Mary Barrett is contrary to law. The eighth and ninth, that the decision and judgment are contrary to law. It cannot seriously be contended, we think, that these assignments are insufficient to raise the question of the regularity of the appointment of Mary Barrett upon the issues before the court upon the 'hearing, of the authority'or jurisdiction of the court to make *293that appointment. But if the question might be debatable, and could properly be raised for the first time on petition for rehearing we do not feel called upon to discuss it further, since the argument of counsel is based upon a misconception of what is assigned as error.
That a party has the same right to appeal from a judgment or final order of the Djistrict Court in probate matters as in civil actions — that is by proceeding in error — unless as to a particular matter he is deprived of that right by some express provision of the statute, was declared by this court in Weidenhoft v. Primm, 16 Wyo. 340, 64 Pac. 453. It was held that such right of appeal was granted by the following provisions of the probate code, which appeared in the original act establishing the probate procedure in a chapter under the head of orders, decrees, process, minutes, records, trials and appeals: “Except as otherwise provided in the probate code, the provisions of the code of civil procedure are applicable to and constitute the rules of practice in the proceedings mentioned therein.” (Comp. Stat. 1910, Sec. 5466). “The provisions of code of civil procedure, relative to new trials, and appeals — except in so far as they are inconsistent with the provisions of the probate code — apply to the proceedings mentioned therein.” (Id. Sec. 5467). “If no jury is demanded, the court must try the issues joined. * * * * * * Either (party) may move for a new trial on the same grounds and errors, and in like manner, as provided by law for civil actions.” (Id. Sec. 5468). The words “probate code” were not used in the original sections, nor the word “therein” appearing at the end of Sections 5466 and 5467, respectively; those words were used by the compilers, and no doubt properly so, as better expressing the provisions in a compilation of the statutes. In the original act the sections referred to were respectively numbered 9, 10 and 11 of Chapter 20. By Section 9 of said original act it was declared that the provisions of the code of civil procedure are applicable to and constitute the rules of practice in the proceedings mentioned “in this act”, except as otherwise provided in the act. By'Section to it was
*294declared that the provisions of the code of civil procedure relative to new trials and appeals apply to the proceedings mentioned “in this act”, except in so far as they are inconsistent with the provisions of the act. In the case cited (Weidenhoft v. Primm) it was contended that under a section of the probate code, providing for the determination of' the rights of persons to an estate, and to whom distribution should be made, the judgment in that respect was not reviewable, for the reason that the section declared that “such determination shall be final and conclusive in the administration of said estate and the title and ownership of said property.” But we held that said provision was not intended to and did not take away the right to have the judgment of the district court in that particular reviewed on error. And this court has heretofore reviewed on error an order appointing an administrator, without its jurisdiction to do so having been questioned. (Leach v. Misters, 13 Wyo. 239, 79 Pac. 28; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828). Also an order removing an executor. (Hecht v. Carey, 13 Wyo. 154, 78 Pac. 705, no Am. St. Rep. 981). It cannot reasonably be doubted, we think, that the effect of the provisions aforesaid of the probate code with reference to new trials and appeals, and making the provisions of the code of civil procedure applicable, is to give the right to complain on error in this court of a judgment or final order of the district court in a probate proceeding. A judgment or order which is subject to review in an appellate court is defined in the code of civil procedure as follows: “An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon a summary application in an action, after judgment, is a 'final order which may be vacated, modified or reversed, as provided in this chapter.” (Comp. Stat. 1910, Sec. 5107). Again it is provided in Section 5109 as follows: “A1 judgment rendered or final order made by the district court, may be reversed, vacated or modified by the supreme court, for errors appearing on *295the record.” And in Section 5111 it is provided: “The proceedings to obtain such reversal, vacation, or modification, shall be by petition in error, filed in a court having power to make the reversal, vacation- or modification, and setting forth the errors complained of.” These provisions being made applicable to proceedings under the probate code, it clearly follows that an order in such a proceeding affecting a substantial right is a final order reviewable in this court upon a petition in error. And we think it also clear that the order here complained of is such an order. (McCallip v. Sharp, 13 O. Dec. (Ni. Pri.) 650).
In the former opinion it was stated that no exceptions to the denial of the petition for the appointment of Patrick C. Barrett was taken by either Mary, Ed or Patrick C., and that they were not here complaining of the denial of that pétition; and that the order in that respect became final. That was the only reason given in the opinion for directing the appointment of James; although the court had in mind other reasons based upon a consideration of the conflicting claims of the respective petitioners as to the amount and value of the property of the estate. But it is now urged that the right of Patrick C. to be appointed administrator is not before this court, since he is not a party to the proceeding in error; and that any waiver on his part by reason of his failure to except to or appeal froin the order that was made was conditional upon the appointment of Mary, to which he had no objection. We think the point well taken. The denial of the petition for Patrick’s appointment and the granting of letters to Mary were embraced in the same order, and having no objection to her appointment Patrick C. might well have refrained from excepting to the order and of complaining in this court of her appointment and the denial of his petition for that purpose. Neither Patrick C. nor Ed Barrett, who had joined with Mary in the petition for Patrick’s appointment, were made parties to this proceeding in error. They are not described in the title of the case in this court which is given in the petition in error as follows: “In the Matter of the Estate of Mrs. *296Mary Barrett, or Mary Barrett, deceased. James Barrett, plaintiff in error v. Mary Barrett, defendant in error.” In the precipe for summons in error the case is referred to only as James Barrett, plaintiff in error, v. Mary Barrett, defendant in error; and the request for the issuance of summons in error was general, without naming any other person than Mary Barrett to be notified of the proceeding in error; and she was the only person named as defendant in error in the summons in error, and, by the indorsement thereon, she appears to have been the only person notified or served.
Whatever might have been the effect of a suggestion of defect of parties at an earlier stage of the proceeding in error, we think it is now too late to object on that ground to a review of the order so far as it denied the petition of James and granted letters to Mary, for Patrick and Ed are not in our opinion necessary and indispensable parties for the consideration and review of the order in those particulars. But Patrick C. Barrett not being a party here the matter of the appointment as between him and James should not be determined in this proceeding in error, and we think that we went too far in directing the appointment of James. This can be corrected, however, .without a rehearing by a modification of-the order remanding the cause. The petition for rehearing will, therefore, be denied, and the order heretofore entered will be modified by an order remanding the cause with directions to vacate the appointment of Mary Barrett as administratrix of said estate and for further proceedings not inconsistent with the former opinion respecting the law of the case.
Scott, C. J., and Beard, J., concur.