Gannon v. Phelan
| Decision Date | 19 March 1902 |
| Docket Number | 11,241 |
| Citation | 89 N.W. 1028,64 Neb. 220 |
| Parties | THOMAS GANNON v. J. R. PHELAN, ADMINISTRATOR, ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court for Box Butte county. Tried below before WESTOVER, J. Reversed.
REVERSED AND REMANDED.
Francis A. Brogan and William L. McLaughlin, for plaintiff in error.
Nathan K. Griggs, contra.
DAY, C HASTINGS and KIRKPATRICK, CC. concur.
This is a proceeding in error to review a judgment of the district court for Box Butte county, dismissing an appeal from a judgment of the county court of said county, in the estate of Maggie Gannon, deceased. The record shows that Thomas Langan filed a petition in the county court for Box Butte county alleging that on October 4, 1898, Maggie Gannon died in Deadwood, Lawrence county, South Dakota, leaving no last will and testament; that she was possessed of certain real and personal property in Box Butte county; that petitioner was the father of the deceased; that Thomas Gannon was her surviving husband, and that there were no other heirs or representatives; and praying that an administrator be appointed. Upon this application J. R. Phelan was appointed administrator of said estate, and duly qualified and acted as such. On July 15, 1899, an order was entered approving the final account of said administrator, and directing the distribution of the personal assets, and ordering all of them to be delivered to Thomas Langan. An order was also entered as to certain real estate belonging to the estate. On July 17, 1899, Thomas Gannon applied to the court for an order fixing the amount of a bond for an appeal to the district court, and, upon hearing, the amount of such bond was fixed at $ 300, which was duly executed and approved by the court within the time allowed by law. This bond was signed by Thomas Gannon personally, and also by him as administrator of the estate of Maggie Gannon, deceased, appointed by the county court for Lawrence county, South Dakota, and also by the proper sureties. The obligee named in the bond was "the state of Nebraska." A duly certified transcript of the proceedings in the county court was filed in the district court on August 5, 1899, within the time prescribed by law. J. R. Phelan, as administrator, thereupon filed a motion to dismiss the appeal on the following grounds: "(1) That said appeal has not been had nor taken in the manner required by law; (2) that no bond upon or for such appeal has been given or executed by appellants as required by law; (3) that appellants are not authorized by law to unite in the appeal of said cause to this court; (4) that the appellants are not and were not aggrieved by the order or decree appealed from, had and rendered by the court below; (5) that Thomas Gannon, as administrator, under appointment in the state of South Dakota, is not entitled to appeal this matter to this court, it appearing that appellee herein has been appointed as administrator of the estate of said deceased within the state of Nebraska, nor are said two appellants entitled jointly to have or maintain this appeal to this court." This motion was sustained and the appeal dismissed. To reverse this order Thomas Gannon prosecutes error.
The first and second subdivisions of the motion can be considered together, as they relate to objections based upon the form of the undertaking for appeal. The record shows that the appeal bond was filed within the time prescribed by law, and was duly approved by the judge of the probate court. This bond however, ran to "the state of Nebraska" as obligee, instead of to the judge of the probate court, as required by section 311 of chapter 23 of the Compiled Statutes of 1901. It is urged that this defect is fatal to its validity, and that the district court acquired no jurisdiction of the case, and hence a dismissal of the appeal was the proper order to be made. The undertaking, although informal and irregular, is not, in our opinion, void, and was sufficient to invest the district court with jurisdiction. In bonds of this character the obligee is only a nominal party, and under our practice a suit upon it would be brought, not in the name of the obligee, but in the name of the party entitled to the protection of the bond. Cases involving questions of similar import have been considered by this court, and bonds running to an obligee other than the obligee designated by the statute have been held to be good. In the case of Huffman v. Koppelkom, 8 Neb. 344, 1 N.W. 243, it was held: In Thomas v. Hinkley, 19 Neb. 324, 27 N.W. 231, it was held that a liquor dealer's bond, given to the village of Hebron instead of the state of Nebraska, was not therefore invalid, and that an action could be maintained upon it by any person aggrieved. But, conceding that the bond was irregular in form, and open to attack, the proper practice was for the district court to have required an amended bond to be filed within a...
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