Dennison v. Talmage

| Ohio | Dec 15, 1876

Welch, C. J.

The right of appeal rests solely upon statutory provisions, and unless those provisions are complied with, the right can not be made available. The statute allowing appeals to the district court (2 S. & C. 1162, sec. 2) requires the appellant, in order to perfect his appeal, to give an undertaking within thirty'days from the rising of the court. This is the general provision, and the only exception to it, or at least the only exception applicable to cases like the present where the executors or administrators were original parties, is contained in the 6th section of the same statute. By this latter section it is provided,'that “ in no case shall administrators or executors (and guardians), who may have given bond with security in this state according to law, be compelled to give bond and security in order to perfect their appeal.” The same provision as to executors and administrators is found in section 243 of the statute for the settlement of estates of deceased persons (S. & C. 612), which exempts from the necessity of giving appeal bonds executors and administrators “ who may have given bond and security in this state according to lawn”

A simple reading of these provisions would seem to be all that is necessary to show7 that they were not complied with in this case by the executors. They gave no appeal bond, nor had they “ given bond with security in this state,” as such executors. They have neither complied with the general rule, nor have they brought themselves within the exception, if the apparently plain reading of the statute is to prevail.

But it is said on behalf of the executors that these provisions are not to be read and construed by themselves, and that when construed in connection with section 242 of the act for settlement of estates of deceased persons (S. & C. 612, sec. 242),the true meaning is that it is only foreign executors and administrators w'ho are required to give bond and security in this state as such executors or administrators, in order to entitle them to perfect an appeal without bond. We dissent wholly from this construction. It is far fetched; it does violence to the plain words of both statutes, and it does not seem to us to be warranted by any considerations of justice or public policy.

But it is also claimed by counsel for the executors, that the court of common pleas had power to decide the question whether executors should be required to give an appeal bond, and that its journal shows that it duly exercised that power by ordering that no bond should be required.

Whether the words “ for which no bond is required,” vdth which the journal entry concludes, are, in this form of entry, to be regarded as part of the order of the court, or as a part of the notice of appeal placed on the record by the executors-, we think it is unnecessary t© determine. I regard it as part of the notice, both because of its close connection with the words of the notice, and also because the court had no power to make such an order. That the court had no such power we all agree. As we understand the law in such cases, after the court has rendered its final j udgment its power in that respect is limited to two things —namely, fixing the amount of the bond, and deciding to which party it shall be made payable; and these powers can only be exercised in specified cases. Doubtless this was a proper case for the exercise of that power. But the court has no more power to dispense with the bond, where one is required by law, than it has to require a bond where one is not required by law. If the court can dispense with the bond in favor of executors and administrators, it can dispense with it in favor of individual parties in all cases where the court is authorized to fix the amount of the bond. To concede such a power to the court would be to nullify the plain provisions of the law requiring appeal bonds. It is the law, and not the court, that determines the cases in which bonds shall be given. The power of the court is merely to determine the amount and the obligee of the bond, and is limited in its effect to cases in which the law itself requires the bond. Whether, in a given case, the law requires an appeal bond is to be determined by the appellate court, when the case comes there, subject only to review on error; and parties must, at their own peril, and within the thirty days allowed by law, decide the question for themselves, just as they must decide for themselves many other questions on which the jurisdiction of the appellate court is made to depe,nd.

It is also claimed that the district court erred in refusing to receive the appeal bond offered by the executers. We are referred by counsel to no authority in support of the supposed right to give such a bond, and thus confer jurisdiction upon the court’; nor is any statutory provision cited giving such right. We need only say that in our judgment there is no such right, and that jurisdiction can not thus be conferred.

We think the court, in refusing the bond and dismissing the appeal, committed no error.

Motion overruled.