136 Ky. 349 | Ky. Ct. App. | 1910
Opinion of the Court by
Affirming.
The time is not stated, bnt prior to the year 1903 appellee was appointed administrator of the estate of J. F. Caplinger, and in the early part of the year 1903 he made a partial settlement, and about November of that year he made what he alleged to be a final settlement. Appellants, the widow and children of J. F. Caplinger, filed exceptions to both settlements. On the 23d day of November, 1903, appellee resigned as such administrator in open court, which resignation was accepted. A rule was awarded against him requiring him to file in the county court by January 15,1904, a statement or correct copy of a sale bill and an inventory of the estate of J. F. Caplinger, which went into his hands as such administrator. (It is indicated that the originals, if ever filed, were lost.) It appears that he did not respond to this rule, but his attorney did for him and denied the jurisdiction of the court to grant and require him to respond to such a rule, as he was no longer the administrator of the estate, and made the same claim with reference to the exceptions made and filed by the widow and children to his settlements. The matter of exceptions to the settlements was referred to a special commissioner to take proof and report with reference thereto, and as to the-state of accounts existing between appellee and the- estate. The commissioner
Section 724, Civ. Code Prac., provides that an appeal must be taken by presenting a certified copy of the judgment of the lower court and the amount.of the costs, and causing to be executed before the clerk by. one or more sufficient sureties a bond to the effect that appellant will satisfy and perform the judgment that shall be rendered on the appeal. Whereupon the clerk shall issue an order to the judge of the inferior court to stay all proceedings thereon. This was all complied with, except the execution of the bond. The case of Huggins on Petition, 102 S. W. 849, 31 Ky. Law Rep. 475, was similar to the one at bar, and an appeal bond was not executed as required by the Code, and for this reason the lower court dismissed the appeal, and was sustained in its action by this court.
This is conclusive o*f the case at bar, unless the court erred in refusing to accept the bond tendered by them when.the motion was made to dismiss, the appeal for the want of a bond, which was rendered long after the expiration of the 60 days from the-time of the rendition of the judgment in the county court. This court has decided' that when a party undertakes to give a bond required by law, and it is defective, the court should "permit the party to make the bond perfect, but it has never decided that, when a party fails to execute a bond within the time prescribed by law, he should be permitted, or that the court has power to pérmit the execution of the bond after the time allowed by law for its execution, and it' is our opinion that it is not within the- authority of the court to do so. The section of the Code re-
For these reasons, the judgment of the lower court is affirmed.