11 Utah 421 | Utah | 1895
This controversy first arose in the probate court of Box Elder county over an order of that court revoking the letters of administration of the appellant, who had been appointed administrator of the estate of Henry C. Wells, deceased. There were also several other orders made, among them being one discharging the sureties of the appellant. From all of these orders an appeal was taken to the District Court of the Fourth Judicial District, and the appeal to this court is from an order of the district' ■court dismissing the appeal taken from the orders of the probate court.
The facts disclosed by the record are, substantially, that the appellant was appointed administrator of the estate of Henry C. Wells, deceased, by the probate court on No■vember 16, 1892, and thereupon gave bond and ’qualified ■a,s provided by law; that on October 23, 1893, C. A. Wells and John Kelly petitioned the probate court to remove him from the office of administrator, charging waste, fraud, and mismanagement of the estate, and removal from the territory of Utah; that thereafter said court suspended his powers as administrator, and issued a citation for him to appear and show cause why he should not be removed from office; that the sheriff, who attempted to serve said citation, made return on October 26, 1893, that the said administrator could not, after due diligence and Inquiry, be found within the territory of Htah; that then, by order of the court, the citation was published in' a newspaper once a week for four weeks; that on the 23d day of October, 1893, the sureties on appellant’s official bond petitioned the court to be released from all responsibility for all his future acts as .administrator; that a hearing
TJnder this state of facts, counsel for the appellant claims that the several orders appealed from are void, because the service of the citation on the administrator, by publication, was not properly made, and that, therefore, the probate court was without jurisdiction. The order of the ■court was that the citation be published once a week for four successive weeks, and, while the record does not refer ■specifically to each day on which it appeared in the newspaper designated, still it is clear from the affidavit of publication that it appeared the first time on the 28th of ■October, and the last time on the 18th of November, 1893, and the hearing was set for the 27th of November, 1893. At the oral arguments in this court it was admitted that there were four regular insertions of the notice in the weekly newspaper designated in the order of the court. The last insertion having occurred on the 18th of November, the publication was complete on the 2oth, and the fact that the hearing was not set or had until the 27th -of November did not leave the court without jurisdiction, 'because the publication was complete before the day on which the case was set for hearing, and this was a compliance with the order of publication. The authorities ■cited by counsel for the appellant on this question are not in point, because they refer to cases where the hearing was had before the publication was complete. The law is too well settled to require reference to authorities that
Counsel for appellant also insists that, under the rules-of practice in this territory, an undertaking on appeal was not necessary in this case, and that the district court erred in dismissing the appeal from the probate court. He refers to 'rule 2'4 of this court (25 Pac. vii), and to the case of Uebel v. Maltese, 2 Utah, 430, to sustain his position on this point. A perusal of rule 24 will show that it does not apply to a case like the one at bar at all. It applies to any case where an administrator has given an official bond which, at the time of taking an appeal, is in full force and virtue; but this does not include a case likethis one, where the sureties were discharged at their own instance, before the appeal was taken. In such case, the appellant, in order to make his appeal effectual, must file a sufficient undertaking. Nor does the case of Uebel v. Maltese, avail the appellant, or conflict with the views-herein expressed; for in that case, only the letters of the administrator having been revoked, and his official bonds not having been affected, this court held, in conformity with rule 24. that it was not necessary to file an undertaking on appeal in addition to his bonds as administrator. ,
We are of the opinion that the appeal from the probate to the district court was properly dismissed. Having reached this conclusion, we do not deem it necessary te decide what effect an appeal has on the judgment appealed
