Johnson v. Tyson
Synopsis
Appearance in Probate Court.—The voluntary appearance in the Pro-hate Court of an executor, in proceedings relating to the estate, is a waiver of the issuance and service of a citation on him.
Order op Probate Court not Appealable. — An appeal does not lie from an order of the Probate Court setting aside its own proceedings, had before a final order, upon application of the surviving wife to have the homestead set aside to her.
By the Court: It is clearly shown by the record that the executor had appeared from time to time in the proceedings had upon the petition of the widow to set apart certain property as a homestead for her. Notwithstanding such, his general' ap[259]pearanee to the petition, the Probate Court subsequently and pending the proceedings, upon the motion of the executor (respondent here), set aside all the proceedings subsequent to the filing of the petition, because “ no citation was issued and served upon the executor.” Of course we would not hesitate, upon these facts, to reverse this action of the Court, were the order itself the subject of an appeal, but it is not. The proceedings upon the petition appear to be still pending before the Probate Court, and the order complained of therefore does not amount to an order, decree, or judgment, either “for or against setting apart property,” etc., for the widow. (Probate Act, Sec. 297.)
The appeal is dismissed. Remittitur to issue forthwith.
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