In re Pierson's Executors

13 Iowa 449 | Iowa | 1862

Wright, J.

The law provides that an appeal from a decision of the County Court shall he taken within thirty days from the day in which the decision was made, “ by claiming an appeal, and filing in the county office a bond with one or more sureties, and a penal sum to be approved by the county judge or clerk,” &c. (§ 267.) “ If the party entitled to an appeal fails, without fault on his part, to claim, or perfect, or prosecute his appeal, he may apply to the District Court, which, upon being satisfied of the matter, and that the case requires revision, may authorize an appeal to be taken upon such terms as it deems reasonable, and may take such order as may be requisite to give it effect.” (§270.) The District Court, also, has a general supervision over all inferior courts, to prevent and correct abuses, where no other remedy is provided. (§ 2668.)

By the statutes of some of the states, it is provided that an administrator may take an appeal without giving security. Such statutes, however, apply to cases where the judgment or order affects him in his representative capacity. If the judgment be personal, to be paid out of his own means, he must give bonds as any other person. Our statute does not exempt an administrator from this duty. When the judgment is against him in his representative capacity, however, then, as it is to be paid finally from the assets of the estate, for the faithful application of which he . has already given the required security, the penalty would properly and reasonably be but light.

In this case it seems that the executors had given bond in the sum of eighty thousand dollars. There is no suggestion that this is not amply sufficient to cover all assets coming into their hands. Nor was any step taken to increase the amount of this bond, nor any attempt to show that the sureties were not fully solvent. There was no order against them to pay money, nor to do any act, as individuals. Every act of mal-administration charged or. found by the court, was covered by their bond as executors. If the finding of the county court should be sustained, there could be no judgment for money, and none against the sureties on the appeal bond, beyond the costs of the proceeding. Under such circumstances, it seems to us that the bail demanded was excessive, that to require it operated as a virtual denial of justice, and that the district court erred in discharging the rule.

Reversed.

On the 12th day of January, 1863, the following additional opinion was delivered by —

Wright, J.

In a petition for re-hearing, appellee’s counsel urge that this court could not take jurisdiction of the case, as the matter appealed from does not fall under or within any of the provisions of the Revision giving the right to an appeal. We are of the opinion, however, that the order discharging the rule affected a substantial right, and in effect determined the action. As such it is reviewable in this court under clause 1, § 2631, of the Revision.

If the District Court errs in matter of law, in determining that the case presented does or does not require revision under § 267 of the Revision, such ruling may be re-examined in this court. And if in a matter of fact, the discretion has already been abused, this court will review and reverse.

Re-hearing refused.