Smith v. McDaniel

15 N.H. 474 | Superior Court of New Hampshire | 1844

Parker, C. J.

The appeal in this case was taken under the statute of July 2d, 1822, regulating the settlement and distribution of insolvent estates, in which, after provision for an appeal and notice, and that “ the creditor may, at the court appealed to, enter his action as plaintiff against the executor or administrator,” it is enacted, that “ if the creditor shall fail to enter his action in manner aforesaid, or to recover judgment thereon, his demand shall be forever barred, and whatever was allowed by the commissioners shall be struck from the list of claims.” N. H. Laws, (Ed. 1830,) 862. It is farther provided, by the same act, that there shall be no reviews of any judgment rendered on an appeal from the determination of the commissioners. Similar provisions are incorporated into the Revised Statutes. Ch. 163, § 6 and 10.

This case is within the express language of the act. The claimant took an appeal, and failed to enter it at the time when it should have been entered. The provision of the statute is express, and it was intended to bring the settlement of estates represented insolvent to a speedy close. The case is not within the statute authorizing the court to grant reviews. Rev. Stat., ch. 192. Nor within that authorizing the court to grant appeals from the decrees and orders of the judge of probate. Dyer vs. Stemmed, 6 N. H. Rep. 411. In tills latter case, where the appeal had by mistake been entered in the wrong court, it was suggested incidentally that the applicant might move in the common pleas to enter the appeal as of the last term, and to biingit forward for trial. That case never came before the court again, upon the question whether, by the neglect to enter at the term of the court at which it ought to have been entered, the claim was barred. Whether or not the appeal might be saved in this mode in such a case, which may be doubtful, it is clear that this petition cannot be maintained.

Petition dismissed.