Collins v. Millen
| Decision Date | 14 December 1897 |
| Citation | 57 Ohio St. 289,48 N.E. 1097 |
| Parties | COLLINS v. MILLEN et al. SPENCER v. HOLMES et al. |
| Court | Ohio Supreme Court |
Error to circuit court, Greene county.
Actions by Mitchell W. Collins, executor, against Eli Millen and others, and by Charles L. Spencer, administrator, against Joseph Holmes, executor, and others. From judgments dismissing appeals taken by plaintiffs from judgments of the probate court sustaining exceptions to their respective accounts, plaintiffs bring error. Affirmed.
Syllabus by the Court
1. Where, in the course of a general revision of the statutes of a state, a clause is added to a section thereof, the plain and obvious effect of which clause, according to its ordinary meaning, is to qualify the former operation of such section this effect should not be denied on the ground, simply, that the clause was added in the course of the revision; on the contrary, the new section should receive the construction required by the natural import of the language it contains.
2. Where one who is a party in a fiduciary capacity to an action or proceeding appeals from a judgment therein affecting adversely his own pecuniary interests, he is required by section 6408, Rev. St., to give an appeal bond.
Little & Spencer, for plaintiffs in error.
R. L Gowdy, T. L. Magruder, C. H. Kyle, and H. C. Armstrong, for defendants in error.
Both actions originated in exceptions filed to the respective accounts of the plaintiffs in error in the probate court of Greene county. In the first of the two, Collins, Executor against Millen et al., Mr. Collins, as executor of Catharine Collins, filed in the probate court an account of his transaction in the usual form, charging himself with the receipt of certain moneys, and claiming credit for certain expenditures and payments made on behalf of his trust. To this account Eli Millen and others, who were creditors of deceased, filed exceptions, alleging that the executor had failed to charge himself with certain moneys belonging to the estate which he had received, and had taken credit for payments improperly made. Upon the hearing of these exceptions they were in part sustained. The executor, feeling himself aggrieved by the action of the probate court in this regard, gave notice of his intention to appeal the case to the court of common pleas. So far as the record discloses the appeal was in all respects perfected by him, except that he gave no bond. A transcript of the journal entries in the probate court, together with the original papers, was filed in the court of common pleas; whereupon the exceptors, Millen and others, now defendants in error, filed in the court of common pleas a motion to dismiss the appeal, for the reason that the appellant, the executor, had not given an appeal bond. This motion was sustained, and the appeal dismissed by the court of common pleas, for the reason assigned in the motion. The circuit court, on error, affirmed the judgment of the court of common pleas, whereupon the executor instituted in this court proceedings to reverse the judgment of both the circuit court and the court of common pleas. The question raised in the second case is, in all essential respects, similar, and its determination rests upon the identical principles that control the first case, so that it will not be further noticed.
The only question presented by the record for determination here is whether the court of common pleas erred in dismissing the appeal from the probate court. The right of appeal is statutory, and we must look to the statutes to ascertain if it has been lawfully exercised. The party who seeks to exercise this right must comply with whatever terms the statutes of the state impose upon him as conditions to its enjoyment. The right, doubtless, is remedial in its nature. It is a proceeding in a civil action, given by our Code of Civil Procedure, and falls within the letter and spirit of section 4948, Rev. St., which commands a liberal construction of the provisions of our Civil Code. This court has heretofore recognized these liberal principles in a number of cases respecting steps necessary to perfect an appeal, and has been especially liberal in sanctioning amendments made to cure defects in the methods that parties have pursued in exercising this right of appeal. Negley v. Jeffers, 28 Ohio St. 90; Irwin v. Bank, 6 Ohio St. 81;Saterlee v. Stevens, 11 Ohio 420; Johnson v. Johnson, 31 Ohio St. 131; Watts v. Shewell, Id. 331; Reid v. Quigley, 16 Ohio 445;Church v. Nelson, 35 Ohio St. 638;Creighton v. Harden, 10 Ohio St. 579; Bentley v. Dorcas, 11 Ohio St. 398;Propeller v. Wick, 12 Ohio St. 333.
We bring with us to the consideration of the question involved in the case before the court the same liberal views that our predecessors held and announced in the foregoing as well as other similar cases touching the question of perfecting appeals that, by inadvertence, had been irregularly taken. We recognize, however, that the courts can dispense with no condition prescribed by statute as necessary to perfect an appeal, and that the only field open to the display of liberality in this connection is in the construction of the statutes that prescribe these conditions.
The appeal in question was taken from a judgment of the probate court rendered in the course of settling an account of the plaintiff in error, as an executor, and the steps required to perfect it are prescribed by section 6408, Rev. St., which reads as follows:
By this statute three conditions must exist before one desiring to take an appeal from a judgment of a probate court, rendered in a proceeding to settle the account of an executor, can perfect his appeal without giving an appeal bond: (1) He must be ‘a party in a fiduciary capacity.’ The plaintiff in error being an executor, and his accounts as such the subject of investigation in the probate court, was of course, before that court in a fiduciary capacity. (2) He must have given bond in this state for the faithful discharge of his duties. That, it is conceded. Plaintiff in error had done. (3) The appeal must be ‘in the interest of the trust.’ The contention before us is confined to a construction of the phrase ‘in the interest of the trust.’ Plaintiff in error contends that it should be taken to mean, ‘in respect of the trust,’ or ‘concerning the trust,’ and has no reference whatever to pecuniary or beneficial considerations. So that an appeal should be deemed in the interest of the trust, if it is taken in respect to a matter concerning such trust, although the judgment appealed from was advantageous to the trust estate, and increased the trust fund by charging the trustee with an enlarged liability,-a liability greater than rested upon him, according to his notion. In support of this contention, we are cited to the history of the statutory provision dispensing with appeal bonds by executors, administrators, assignees in insolvency, etc. An inspection of the annual volumes of our statutes shows that from quite an early period appeals were allowed to be taken by executors and administrators, who had given bond with sureties in this state, without requiring of them appeal bonds, and this, too, without reference to the question whether the judgment appealed from favorably or unfavorably affected the estate. 29 Ohio Laws, p. 78, § 109; 24 Ohio Laws, p. 131, § 26; 14 Ohio Laws, p. 166, § 50; 1 Swan & C. St. p. 612; 2 Swan & C. St. p. 1218: 52 Ohio Laws. p. 105, § 6. Counsel contend that this policy was inaugurated in this state, at least, as early as 1816 (14 Ohio Laws, p. 166, §...
To continue reading
Request your trial
- Lee v. City of Baton Rouge
- Lattea v. City of Akron
-
Travis Lanier Williams Revocable Trust v. PNC Bank
...mandatory requirements." Zier v. Bur. of Unemp. Comp., 151 Ohio St. 123, 125, 84 N.E.2d 746 (1949), citing Collins v. Millen, 57 Ohio St. 289, 291, 48 N.E. 1097 (1897). "No one would contend that a notice of appeal need not be filed within the time fixed by statute. Compliance with a requir......
- Hale v. City of Knoxville