57 Miss. 292 | Miss. | 1879
delivered the opinion of the court.
The bill in this case was filed by an administrator to recover land, which he alleged belonged to his intestate. His right to do so, as stated in the bill, is based upon the ground that the assets of the estate are insufficient to pay the debts ; but it is not shown that the estate has been declared insolvent, nor are the heirs of the intestate made parties. The demurrer to the bill was therefore properly sustained. From this order the administrator appealed to this court without giving bond for costs, as required by the statute. Code 1871, §§ 1251, 1252.
The decisions are uniform, from a very early date, that the provisions of the statute requiring appeal bonds were conditions precedent and necessary to be performed before an appeal could be properly granted. There is no exception in the statute expressly relieving executors and administrators from the duty of giving appeal bonds. Such exemption as they have enjoyed on this subject has resulted from a statutory provision, which has existed in this State from a very early period and is
In Scott v. Searles, 1 S. & M. 590, the High Court of Errors and Appeals decided that an executor or administrator was not liable for costs in suits prosecuted or defended by him. This decision was made under a misapprehension of the statutes on that subject, and the court in the subsequent case of Williamson v. Childress, 26 Miss. 328, overruled that case, and held
This construction is in accordance with the plain meaning of the statute, and subserves also a public policy well expressed in the following extract from the opinion of the High Court of Errors and Appeals in the case Williamson v. Childress, ubi supra. The court, referring to the statutes before quoted, says: “By these provisions, it was obviously the intention of the legislature, in giving the right to executors, &c., to prosecute and defend suits, to guard against the abuse of the power, and to protect the estate against the effects of improvident litigation; and certainly nothing could better promote this salutary object than the provision that executors and administrators should, in
We conclude, therefore, that an administrator or executor cannot appeal without giving an appeal bond for the costs. When this is done, he has a right to a supersedeas of the execution of the judgment or decree appealed from, so far as it affects the estate which he represents.
Appeal dismissed.