33 Conn. 122 | Conn. | 1865
The estate of the deceased was represented insolvent, and the appellant presented a claim to 'the commissioners which was disallowed. The appellant moved the court of probate for an appeal within fifteen days after the report of the commissioners was returned into court, and named a sufficient bondsman on the appeal, who was not present at the time. The motion was allowed, so far as the same could be allowed without taking a bond. Soon after the fifteen days had elapsed the bondsman was presented to the court, and in opposition to the claim of the appellee, and for the purpose of trying the validity of the proceedings, the record of appeal was perfected as of the time when the motion to appeal was. made, and copies were transmitted to the - superior court and entered in its docket. The appellee filed a plea in abatement and a plea to the jurisdiction.
The appellee in support of his pleas relies on the express language of the statute, (Gen. Stat., p. 440, sec. 145,) which provides that in a case like this the “ aggrieved person may within fifteen days after the report of commissioners is returned into court appeal to the next superior court to be holden in the county in which the probate district or any part thereof is situated; provided however that the party appealing shall give sufficient bond with surety to the satisfaction of the court of probate, &c.”
He insists that inasmuch as the party aggrieved would have no right of appeal without the statute, he must bring himself within the provisions of the statute, or he would have no right of appeal, and the court of probate could not give one to him, nor could it either exercise jurisdiction itself over the matter or confer jurisdiction over an appeal.
He also insists that according to the case of Curtiss v. Beardsley, 15 Conn., 526, a party can hot be said to have appealed till the bond has been given, and that consequently the limitation applies to the bond as well as to the motion for the appeal.
We have felt the force of these objections, and perhaps if no high authority could have been found for a different decision might have considered ourselves bound, although
But the case which corresponds in its circumstances the nearest with the present case is that of The Dos Hermanos, in the Supreme Court of the United States, 10 Wheat., 806. There is a law of Congress providing that “ writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of,” with certain exceptions in the case of infants, &e.; e< and every justice or judge signing a citation on any writ of error as aforesaid shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good.” Brightly’s Dig., p. 258.
By comparing the terms of this law with the statute of this state which has been quoted, it will 'be seen that if there is any distinction the law of Congress is the most prohibitory, and the limitation the most positive.
Tet in that case Marshall, O. J., says, “ As to the question which has been made whether the appeal was in due time, it appears that the appeal was prayed for within five years, and was actually allowed by the court within that period. It is true that the security required by law was not given until after the lapse of the five years ; and under such circumstances the court might have disallowed the appeal and refused the security. But as the court accepted it it must be considered as a sufficient compliance with the order of the court, and that it had relation back to the time of the allowance of the appeal.” Although the case is called an appeal, it was in the nature of a writ of error, and there is no other limitation by a law of Congress applicable to such a case. The case of The Dos Hermanos is also referred to in Brightly’s Dig., p. 258, note h, as coming under the statute which we have quoted.
The two cases seem to be parallel, and the authority of the Supreme Court of the United States on such a point may, we
The appellee has insisted strongly that upholding such an appeal would lead to great inconvenience, as the executor or administrator would never know when he could proceed with the settlement of the estate. This is sufficiently answered by the remark of Oh. J. Marshall, that the court might have disallowed the appeal. The appellant has no rights that he can insist upon unless he complies strictly with the requirements of the law. In the present case the question, whether there was an appeal pending or not, could easily have been determined if the administrator had applied to the court of probate. If there had been culpable negligence on the part of the appellant, the motion for and allowance of the appeal would doubtless have been disregarded. The inconvenience would in such cases be much less than would sometimes be occasioned by such a rigid construction of the law as has been contended for by the appellee.
We advise that the pleas be overruled.
In this opinion the other judges concurred.
