Casey v. Peebles

• Citation: 12 N.W. 840,13 Neb. 7
• Parties: ELIZA CASEY, ADMINISTRATRIX, PLAINTIFF IN ERROR, v. G. H. PEEBLES, DEFENDANT IN ERROR
• Decision Date: 21 June 1882
• Court: Nebraska Supreme Court

12 N.W. 840

13 Neb. 7

ELIZA CASEY, ADMINISTRATRIX, PLAINTIFF IN ERROR, v. G. H. PEEBLES, DEFENDANT IN ERROR

Supreme Court of Nebraska

June 21, 1882

ERROR to the district court for Seward county. Heard below before POST, J.

AFFIRMED.

Norval Brothers, for plaintiff in error.

Roberts Westover and Williams, and St. Clair & Anderson for defendant in error.

OPINION

MAXWELL, J.

On the 16th day of March, 1881, G. H. Peebles filed a claim of $ 110.00 for medical services rendered to Cornelius Casey against the estate of Cornelius Casey deceased, in the county court of Seward county, and on the 29th of June of that year said court allowed $ 60.00 thereon. On the 22nd of July 1881, Peebles filed in said court an undertaking with one surety, which was duly approved, for an appeal to the district court. On the 21st of September of that year, the defendants filed a motion to dismiss the appeal for the following reasons: First, Because the appellant did not make his application in writing for an appeal and file the same in the county court within ten days after the entry of the decree. Second, Because the appeal was not taken in the time and manner provided by law, and because no lawful bond was filed. The motion was overruled, to which the defendant excepted, and in default of answer judgment was rendered in favor of Peebles for the sum of $ 110. The cause is brought into this court by petition in error.

The principal error relied on is in overruling the motion to dismiss the appeal. The question to be determined depends upon the construction to be given "an act providing for an appeal from the decision of the county court in certain matters," approved Feb. 28, 1881, which 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, sec. 42.

Section two provides that: "All appeals shall be taken within thirty days after the decision complained of is made."

Section three provides that: "Every party so appealing shall give bond in such sum as the court shall direct, with two or more good and sufficient sureties, to be approved by the court, conditioned that the appellant will prosecute such appeal to effect without unnecessary delay, and pay all debts, damages, and...