Zumwalt v. Zumwalt

3 Mo. 269 | Mo. | 1833

M’Girk, C. J.,

delivered the opinion of the Court.

John and Adam Zumwalt were administrators of the effects, &c., of their father. On a final settlement before the County Court of St. Charles .county, Jacob Zumwalt ‘presented his petition to ¡the Court, alledging that .he had received no advancement in the lifetime of his father, and "that the other children of the deceased had been advanced to about the amount of $1,000, and praying that the remaining funds in the hands of the administrator might be paid over to him, which ¡would still leave, him with a less portion than the other children had received. The Court heard the testimony and ordered that the administrators pay the balance in their hands to Jacob. A bill of exceptions was taken to the opinion of the Court. 'Thereupon John, one of the administrators, and one George Zumwalt appealed to the Circuit Court. When the cause came there, various proceedings were had in regard to said appeal. Among other things, Jacob .Zumwalt moved the Court to dismiss the appeal because ’both the administrators had not appealed. And, secondly, 'because George Zum-walt, who was one of the appellants, does not appear by the record to have any •interest in the judgment or decree of the Court. The Circuit Court dismissed the appeal, from which dismissal the cause is brought here by appeal. The only point necessary to be considered is, whether the Circuit Court did right in dismissing 'the appeal.

The only evidence on the record conducing to show that George Zumwalt was in any wise interested in the matter is, that Jacob Zumwalt sets forth in his petition the names of the children of the intestate, and among them George is named. 'Talcing it to be true that there is a distributee named George Zumwalt, yet the man appealing may or may not be that man. The record should show that George, the appellant, had an interest in the thing litigated. This could be done by his petition or motion to the Court stating and showing his interest by proof, if denied or required. Then this being entered of record, his right to appeal would be clear. The law is, that any person who has an interest in the matter, and feeling himself aggrieved, may appeal. The fact that an appellant is interested, if he is not a direct party, must be made apparent on the record; and if he does not make it clear that he is interested, but leaves the matter doubtful, the Court must decide against him 5 for the rule is, that if he whose duty it is to make a matter clear, leaves it doubtful, the Court will solve that doubt against him.

The judgment of the Circuit Court is affirmed with costs.