In re Estate of Kothe
| Decision Date | 11 December 1936 |
| Docket Number | 29696 |
| Citation | 270 N.W. 117,131 Neb. 780 |
| Parties | IN RE ESTATE OF ANNIE KOTHE. v. HENRY DREWES, SR., ET AL., ADMINISTRATORS, APPELLANTS MARIE GONSCHIOR, APPELLEE, |
| Court | Nebraska Supreme Court |
Opinion on motion for rehearing of case reported ante, p 531. Former opinion vacated and judgment of district court affirmed.
Syllabus by the Court.
1. Where an heir at law takes an appeal from a judgment of the county court on the final report and petition for final settlement of account by administrator, the latter stands as plaintiff, and it is his duty to file petition in the district court within 50 days from the rendition of the judgment in the county court.
2. Where a party appealing from a judgment of the county court in a probate proceeding gives a bond and files a transcript of the proceedings in the district court within the time prescribed by statute, the latter court becomes possessed of the action.
3. Where objection, that an appeal bond given in the county court was not approved by the county judge, is raised for the first time in the Supreme Court, it will be disregarded.
4. Where, on an appeal from a probate proceeding to the district court, an appeal bond is given within the time but is defective, the proper practice is to move the district court to compel the appellant to give a proper bond within a time to be fixed by the district court, and, upon failure to comply with the order, that the appeal be dismissed.
Appeal from District Court, Jefferson County; Messmore, Judge.
On motion for rehearing.
Former opinion vacated and judgment of district court with respect to rulings complained of affirmed.
For former opinion, see 131 Neb. 531, 268 N.W. 464.
Rain & Rain, of Fairbury, and L. R. Doyle, of Lincoln, for appellants.
H. C Schoening, of Omaha, John C. Hartigan, of Fairbury, and Henry Beal, of Omaha, for appellee.
Heard before GOSS, C. J., GOOD, EBERLY, DAY and CARTER, JJ.
The opinion appearing 131 Neb. 531, 268 N.W. 464, was adopted by this court after the original submission of this cause. Motion for rehearing was filed, and, by direction of this court, a reargument of the cause has been had on such pending motion.
The cause originated in the county court where the administrators of the estate of Annie Kothe, deceased, filed reports of their doings, together with a final report and petition praying final settlement of their accounts. Marie Gonschior, sole heir at law, filed objections to the report. After a hearing thereon and decree in the county court, Gonschior appealed to the district court. In the district court the administrators moved for a nonsuit because the heir at law had not filed a petition in that court within 50 days after rendition of the judgment in the county court, and also a motion to dismiss the appeal on the ground that the appeal bond was insufficient to give the district court jurisdiction. The defects assigned with respect to the appeal bond were that the bond was signed by only one surety, and that such surety was an attorney for Miss Gonschior. These motions were overruled. After hearing and judgment in the district court, the administrators have appealed to this court, and the only errors assigned here relate to the overruling of the motions to nonsuit and to dismiss.
Section 21-1306, Comp. St. 1929, provides: "In all cases of appeal from the county court * * * the plaintiff in the court below shall, within fifty days from and after the date of the rendition of the judgment in the court below, file his petition as required in civil cases in the district court."
The administrators contend that the heir at law is the plaintiff and, under this statute, was required to file a petition in the district court within the time designated, and that having failed to do so motion for nonsuit should have been sustained. We think this contention is unsound. The proceeding in the county court was instituted by the administrators in filing their final report and petition seeking its approval and allowance and for their discharge. They invoked the jurisdiction of that court and sought relief by their action. Pursuant to statute, notice was given of the hearing. The heir at law appeared, filed objections, contested the application of the administrators for discharge, and objected to allowance of their report on numerous grounds. While opposing litigants in that case were not designated as plaintiff and defendant, yet the administrators were the ones who instituted the proceedings and therefore stand as the plaintiffs. The heir at law resisted the demands of the administrators and occupies the position of defendant. We are of the opinion that, under the statute, it was the duty of the administrators to file petition in the district court and that such duty did not rest upon the heir at law. The motion for nonsuit was properly denied.
The administrators contend that the court erred in overruling their motion to dismiss the appeal. In this court they assigned as a ground of such error that the bond was not approved by the county court. That ground, however, was not presented to the district court, and no ruling was had thereon in that court. This court is one of review only, to determine if the district court committed error. It did not, and could not, commit error upon a question that was not submitted to it. Where such question is raised for the first time in this court, it will be disregarded.
In an appeal from the judgment of the county court in a probate proceeding, the statute requires an appellant to give a bond and to file a transcript, and, upon filing such transcript in the district court, that court becomes possessed of the action. Comp. St. 1929, sec. 30-1606. This court has frequently held that where a bond is given, even if defective, still the court has obtained jurisdiction, and that the proper procedure is for the adverse party to move to compel the appellant to give a proper bond in an amount and condition as required by law; that the district court should order such bond to be given within a definite period and, upon failure to comply with the order of the court, the action may be dismissed.
In Jacobs v. Morrow, 21 Neb. 233, 31 N.W. 739, among other things this court said (p. 236): ...
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