[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3 In Banc. The respondents Uthelma Lee Young and Anna Lee Stoddard move to dismiss this appeal for the reason the order and decree appealed is not final.
It appears from the record that Uthelma Lee Young and Anna Lee Stoddard as residuary legatees under the last will and testament of Miles Lee, deceased, filed in the county court for Baker county, Oregon, in the course of the administration of the estate of Miles Lee, objections to the final account filed by David Lee and W.G. Ayre, as executors of the last will and testament of Miles Lee, deceased, and thereafter took an appeal to the circuit court from an order of the county court of Baker county approving said final account and discharging said executors from their trust and exonerating their bondsmen.
The matter was heard de novo upon the transcript of testimony and the record. The circuit court sustained the objections to the final account of the executors. The court found and decreed that in the administration of the estate of Miles Lee, deceased, one Chris Lee, the son, business associate and partner of David Lee under the firm name of Lee Son, pretended to purchase in his own name and in his individual *Page 4 capacity certain sheep and certain lamb contracts belonging to the estate, which matters were referred to in the final account of the executors.
That such purchases were made, in part, by said Chris Lee for the benefit of David Lee and were null and void, and vacated the order of the county court approving the final account and discharging the executors; and remanded the cause to the county court of Baker county, Oregon, for further proceedings, not inconsistent with the findings of the circuit court.
The decree further provides:
"It further appearing to the court that said David Lee while acting as such executor and as the business partner and associate of said Chris Lee received and enjoyed certain avails, returns and profits on account of said pretended purchases of said sheep and said lamb contracts or futures with respect to which he has not accounted to said estate and that said David Lee holds said profits and returns as trustee for the estate of Miles Lee, deceased, and should be required to account to said estate therefor,
"Wherefore it is further considered, ordered, adjudged and decreed that the said David Lee proceed forthwith to fully account to and with said estates of Miles Lee, deceased, for all the transactions of said estate and the property thereunto belonging and particularly for all returns, profits and avails resulting from the resale or other disposition of said sheep and lamb contracts and futures belonging to said estate of Miles Lee, deceased, or in which said estate had an interest, and to forthwith prepare and cause to be filed with the said county court of Baker county a full, detailed and complete account of all the transactions of said estate and property thereunto belonging and particularly a full, complete and detailed account of all the transactions with reference to said sheep and lamb contracts or futures and of all of said avails, profits and returns and give due notice thereof in *Page 5 accordance with law for final hearing and that said county court of Baker county proceed with the further administration of said estate in a manner not inconsistent with the opinion of the court and this order."
Section 548, Or. L., provides in part as follows:
"A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein, * * * or an order setting aside a judgment and granting a new trial, for the purpose of being reviewed, shall be deemed a judgment or decree."
Section 559, subd. (3), reads:
"Upon an appeal to the circuit court, the manner of proceeding thereafter is the same as if the action or suit had been commenced in such court; but if the appeal be from a decree of the county court, the appellate court may give a final decree in the cause or matter, to be enforced as a decree of such court, or such decree as may be proper, and direct that the cause or matter be remitted to the court below for further proceedings in accordance therewith;"
The appeal is taken from the whole of the decree of the circuit court. If the decree appealed from is not a final decree within the meaning of the statute, the motion should be allowed and the appeal dismissed; otherwise, not.
It appears from the language of the decree appealed from that the same is a final adjudication reversing a decree of the county court approving the final account of the executors of the last will and testament of Miles Lee, deceased, and adjudging that the sale of personal property belonging to the estate made to Chris Lee for and on behalf of David Lee, was fraudulent and void, and setting said sale aside. *Page 6
This finding and decree necessitated a further accounting or sale of the sheep and lamb contracts. Therefore, the cause was referred to the county court for further proceedings for the purpose of enforcing the decree of the circuit court and carrying it into effect. The cause was not remanded to the county court for the purpose of a new trial. A trial de novo, such as was had in the circuit court in this matter, precludes the idea of a direction to the lower court to retry the issues upon which it has once passed. In re Plunkett's Est., 33 Or. 414, 417 (54 P. 152). The language used by Mr. Justice WOLVERTON in that case is applicable to the case in hand. It is as follows:
"By intendment of subdivision 3, supra, the decree of the circuit court becomes final upon the matter in hand, which it may enforce through its own process, or direct that it be remitted to the county court, with directions to take such other action in the premises as may seem proper, but always in harmony with the decree of the circuit court. It does not contemplate an affirmance or reversal for errors that may appear of record, but a final adjudication touching the matter thus brought on for hearing, which may be enforced as a decree of that court, or if remitted, controls the future proceedings of the county court."
See Roach's Estate, 50 Or. 179 (92 P. 118); State v. O'Day,41 Or. 495, 499 (69 P. 542).
Counsel for a motion suggest that the order and decree appealed from does not affect a substantial right of the appellants. This contention can not be upheld. The decree determines, as we understand the record, the main contention of the parties to this appeal. The decree, in effect, determines the matter of the sale of the sheep and lamb contracts mentioned therein so as to prevent any further or different decree in regard thereto. The decree is to be enforced as the *Page 7 decree of the circuit court, notwithstanding the fact that it is remitted to the county court to be carried out in detail. The decree appealed from is not an intermediate order. The counsel for the motion suggest that the order remanding the case to the county court for an accounting with no attempt to anticipate what such account may disclose, is not a final order from which an appeal will lie.
The decree suggests that it does anticipate the substance of the account to be rendered by the executors. In effect, the decree requires the executors to deliver or account for the sheep and contracts mentioned. It is just as final as if it required the executors to pay a certain sum of money. We in no way consider the merits of this case in connection with the motion to dismiss.
The motion to dismiss is denied.