On petition for rehearing.
Christianson, J.Plaintiff has petitioned for a rehearing. Attention is called to §§ 8595 and 8596, Comp. Laws, 1913, which provide that an application to a county court for a rehearing on the ground of mistake, inadvertence, surprise, or excusable neglect of the party making the application must be made within thirty days from the date of the order or decree, which is sought to be set aside. And it is pointed out that the application made to the county court in the case at bar was made more than thirty days after the date of the final decree and that consequently the decision of the county court in denying the application was correct, and an appeal therefrom would have been ineffectual. This observation is probably correct. This, however, does not affect either the conclusions reached or anything said in the former opinion. As was said there, the plaintiff did make an application to the county court to have the final decree of distribution set aside. The application ivas made some seven months and twelve days after the date of the rendition of such final decree. But the record does not show affirmatively when the plaintiff acquired knowledge of the alleged erroneous provisions in the decree of distribution. For all the record shows, the plaintiff might have acquired full knowledge of the alleged error within a few days after the final decree was entered, and she might have had ample time in which to make application for rehearing within the thirty day period.
*562The decision of this court, however, was not based upon the proposition that the plaintiff was foreclosed by the application for a rehearing, made in the county court or by the failure to appeal from the decision denying such application.
The former decision was based on the principle that § 8809, Comp. Laws, 1913, did not create a new remedy or right of action, but merely recognized an existing right of action and limited the time within which such action might be brought. This principle was announced in the syllabus as the controlling question in the case, and met with the approval of all of the then members of the court. It also meets with the approval of the court as now constituted.
We are agreed that § 8809, supra, is a statute of limitations, passed in recognition of the rule that an equitable action may be brought in the district court to set aside a final decree of the county court, where proper grounds for equitable interference exist; and that the section was not intended to, and did not, create a new remedy or confer a new right of action, but limited the time in which an equitable action, based on proper grounds, might be brought. We are also agreed that an action does not lie, under § 8809, supra, for the purpose of reviewing mere errors of law, properly reviewable on appeal from the final decree of distribution. We are further agreed that, under the facts in this case, no ground justifying equitable interference with the final decree of distribution has been established.
A rehearing is denied.
Nuessle and Johnson, JJ., concur.