Bazzo v. Wallace
| Decision Date | 20 August 1884 |
| Citation | 20 N.W. 314,16 Neb. 293 |
| Parties | CHARLES E. BAZZO ET AL., PLAINTIFFS IN ERROR, v. JOHN WALLACE, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Douglas county. Tried below before NEVILLE, J.
REVERSED AND REMANDED.
George W. Doane, W. J. Connell, and E. W. Simeral, for plaintiff in error.
Howard B. Smith, for defendants in error.
On the 10th day of January, 1883, the will of one Annie Wallace deceased, was admitted to probate in the county court of Douglas county, the defendant being the executor. On the 16th of that month, the plaintiffs herein filed a bond in said court for an appeal to the district court which bond was duly approved. A transcript was duly filed in the district court on the 5th day of February following. At the next term of the district court, the attorney for the defendant filed a motion to dismiss the appeal for the following reasons:
1st. That no such bond for an appeal was given herein as is required by law.
2d. That no appeal bond has been given herein.
3d. That no transcript was filed in this court within the time required by law.
4th. That the notice of appeal in this case is not sufficient in law.
5th. That said notice of appeal was not served within the time required by law.
6th. That there has been filed in this court no proper evidence of the notice of appeal as required by law.
7th. That said appeal was not granted by the court below, as required by law.
8th. That appeal does not lie to this court from the county court in this case.
The motion was sustained, and the appeal dismissed.
The objections to the bond are too general to be considered. If a bond is defective in any particular, the party objecting should specifically point out the defect. It is not sufficient to object generally--as that the bond does not conform to the requirements of the statute. A bond filed and duly approved is not void, and even if defective, may be amended or a new bond given. O'Dea v. Washington Co., 3 Neb. 118. Casey v. Peebles, 13 Neb. 7. The objections to the bond therefore did not justify the court in dismissing the appeal.
2. Sec. 1 of "An act providing for an appeal from the decision of the county court in certain matters," approved February 28th, 1881, provides that "in all matters of probate jurisdiction appeals shall be allowed from any final order, judgment, or decree of the county court to the district court by any person against whom any such order, judgment, or decree may be made, or who may be affected thereby." Comp. Stat., chap. 20, § 42.
The section above quoted provides that in all matters of probate jurisdiction an appeal will lie to the district court. This certainly includes the probate of a will.
3 Sec. 2 of the act above referred to, provides that an appeal shall be taken within thirty days after the decision complained of is made, and section 5 requires the county court on payment of fees, to transmit to the clerk of the district...
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