Appeal of Orcutt

• Decision Date: 30 January 1892
• Citation: 24 A. 276,61 Conn. 378
• Parties: Appeal of ORCUTT.
• Court: Connecticut Supreme Court

24 A. 276

61 Conn. 378

Appeal of ORCUTT.

Supreme Court of Errors of Connecticut.

Jan. 30, 1892.

Appeal from superior court, Tolland county; J. M. Hall, Judge.

This is an appeal by John P. Orcutt from a probate decree allowing an administration account.A motion to erase the appeal having been denied, the cause was heard on the merits, and judgment rendered for Orcutt.Other parties appeal.Affirmed.

J. L. Hunter and W. A. King, for appellants.

E. H. Hyde, Jr., for appellee.

TORRANCE, J.On the 5th of January, 1885, the court of probate for the district of Stafford passed a decree allowing, approving, and accepting the account of Benjamin Rockwell, as administrator of the estate of Eunice C. Rockwell, deceased.John P. Orcutt, an heir at law of the deceased, residing in Iowa at that date, was not present when the decree was passed, nor had he legal notice to be present, and, as the law then was, might have taken an appeal therefrom at any time within three years thereafter.In 1885 a law was passed providing that all probate appeals, by persons not inhabitants of this state, who were not present when the decree was passed, and did not have legal notice to be present, should be taken within 12 months after the passage of such decree.This act took effect June 1, 1885, and repealed all acts and parts of acts inconsistent with its provisions.It subsequently, in substance, became a part of the General Statutes of 1888, forming section 642 thereof.On the 4th day of January, 1888, John P. Orcutt took an appeal from the decree to the superior court in Tolland county to be held on the first Tuesday of February, 1888, which appeal was allowed, due notice thereof was given in accordance with the order of the probate court, and the cause was duly entered in said superior court, where all the parties in interest, by their counsel, duly appeared.On the 4th day of September, 1888, John P. Orcutt filed his reasons of appeal in the cause without objection, and moved for an order to cite in one Reed, as the administrator of Eunice C. Rockwell's administrator, the latter having died between January 5, 1885, and January 4, 1888.That order was granted, and service of the citation was accepted by Reed on the 4th of September, 1888.Thereafter the cause remained on the docket of the court awaiting trial, and nothing further was done therein until the 10th of September, 1890, when the appellees filed a written motion asking that the cause be erased from the docket of the superior court, for the alleged reason that "it appears, from the facts set forth in said appeal, that said appeal was not taken within such time after the decree of the probate court appealed from as to give this court jurisdiction over it."The record did in fact show the date when the decree appealed from was passed and the date of the appeal.The court denied the motion, and subsequently tried the case, and rendered Judgment in favor of John P. Orcutt.From that judgment the present appeal was taken to this court, and the sole error assigned is the action of the court below in refusing to grant the motion to erase.The appellees contend that, if the appeal from probate in the case at bar was taken and allowed after the time limited by law had passed, the superior court did not, and could not by any act or consent of the parties, acquire jurisdiction.The greater portion of their brief is in support of the point that the time limited by law had passed when the appeal from probate was taken.We deem it unnecessary to decide this last point, because if true, as we shall, for the purposes of discussion, assume it to be, we think the consequence above claimed therefrom does not follow.If failure to appeal within the time limited makes the appeal void, the claimed consequence follows; if it only made the appeal voidable, then the claimed consequence does not necessarily follow.If the appeal was void, as claimed, then the superior court erred in not granting the motion to erase, for in such case there would be no cause before it over which it had any jurisdiction, nor could the parties by any consent or waiver have conferred jurisdiction under such circumstances.Chipman v. City of Waterbury, 59 Conn. 496, 22 Atl. Rep. 289.In such a case it is, of course, the duty of the court to erase the cause from its docket whenever and however the matter is called to its attention.Olmstead's Appeal.43 Conn. 114.

The distinction between a void appeal and one merely voidable is illustrated by the court in the case of Ives v. Finch, 22 Conn. 101.That was an appeal to the county court from the judgment of a justice of the peace.The demand in the writ was over seven dollars, so that the cause was appealable to the county court.The court says: "Had the demand been less than seven dollars, or the appeal taken to the superior court, the appeal would have been void.But the cause was appealable, and the appeal was taken to the right court, and, had the proceedings been regular, the court was bound to take cognizance of it."The appeal in that case was held to be voidable only.In Denton v. Town of Danbury, 48 Conn. 368, andNorton v. Petrie, 59 Conn. 200, 20 Atl. Rep. 190, the causes were not appealable, and the appeals were held to be void.The important question in the present case, then, is whether an appeal from probate taken and allowed after the time limited for doing so has passed is ipso facto void, or is merely voidable, at the option of the adverse party.If, in the case at bar, no appeal bond had been given, or had been given to the wrong party, or the case had not been entered in the superior court at the proper time, or no notice of the appeal had been given according to the order of the probate court, or the interest of the appellant had not been fully and explicitly stated in some part of the record, these matters would not be held to make the appeal void, but would be considered merely as matters of abatement, to be taken advantage of or not, as the adverse party saw fit.Bailey v. Wood worth, 9 Conn. 388;Leavenworth v. Marshall, 19 Conn. 1;Wardens, etc., of Trinity Church v. Hall, 22 Conn. 125;Deming's Appeal, 34 Conn. 201;Donovan's Appeal, 40 Conn. 154.If such matters as the above are not deemed to be of the essence of the appeal, why should the limitation of time be so considered?We are not aware that this question, in the precise form in which it cow arises, has ever been decided by this court.We think, however, that an examination of the cases in our own Reports will show that objection to the allowance of an appeal from probate, taken after the time for appeal has passed, has generally been taken by plea in abatement, and has been treated as an irregularity which made the appeal voidable only, and not void On principle, also, we think this is the correct view to take of the matter.From a very early period in the history of our state, provision has been made by law for appeals in probate causes.The statutes, as revised in 1750, embodied the law upon this subject as it had existed for at least 50 years before.Revision of 1808, p. 212, and notes.In substance, the provisions of our law relating to appeals from probate have, from the earliest times, remained the same as they are to-day.A right of appeal is given to "any person aggrieved," from any "order, denial, or decree of a court of probate in any matter, unless where it is otherwise specially provided bylaw."Since 1750, at least, such appeal was to be taken to the superior court.This apparently absolute right of appeal is limited, however, by certain conditions.It exists only in favor of a party"aggrieved" in a matter not otherwise specially provided for by law; a bond with sufficient surety to prosecute the appeal to effect must be given; and the motion, application, or request for the allowance of the appeal to the proper court must be made to, the probate court within the time limited by law for making the same.When all the conditions exist, the right of appeal is complete, and, if in such cases it is improperly refused, the wrong may be redressed by a proceeding by way of mandawas.Elderkin's Appeal, 49 Conn. 69.When this right to appeal is complete, certain requisites are necessary to its full and effective exercise.The appeal must be requested by the party entitled to it, or by some one acting for him; it must be allowed by the probate court; the appeal papers must in some way show that the party is entitled to appeal as one "aggrieved;" a proper and sufficient bond, with surety, must be given; the appeal papers must be entered in the superior court at the proper time and term.When the right to appeal thus exists, and the right has been duly exercised in the manner prescribed by law, the superior court has full jurisdiction over the subject-matter of the appeal.

But suppose some of the abovementioned conditions do not exist, or are not complied with, and an appeal is taken, or attempted to be taken, and allowed, is it void, or voidable, or valid?The answer...