282 N.W. 276 | Minn. | 1938
To justify his failure to furnish an appeal bond or to deposit cash in lieu thereof, plaintiff invokes 2 Mason Minn. St. 1927, § 9692. That section permits in all cases the filing of an undertaking in lieu of a bond, and concludes thus: *546
"But no undertaking or bond need be given upon any appeal or other proceeding instituted in favor of the state, or any county, city, town, or school district therein, or of any executor or administrator as such."
The answer is that this action is prosecuted and the pending appeal taken by no executor or administrator "as such," that is, in his capacity as representative of the estate.
The cause of action in cases of wrongful death "is given to the personal representative of the deceased as a matter of convenience. It might have been given to any other person * * * in trust for the widow and next of kin." Aho v. Republic I. S. Co.
Inasmuch, therefore, as the representative, although appointed by the probate court, does not act for that court or for the estate in the prosecution of an action for wrongful death, he is not acting as administrator or executor "as such" under § 9692. It follows that if in such an action he appeals to this court, he must furnish a bond or undertaking or deposit cash as required by § 9499.
Our decision in In re Estate of Peterson,
Therefore plaintiff's appeal will be dismissed unless, within ten days after the service upon his counsel of notice of the filing of this decision, he furnishes an approved appeal bond or undertaking or in lieu thereof deposits cash as required by § 9499.
So ordered. *547