In re Estate of Kothe

• Decision Date: 14 July 1936
• Docket Number: 29696
• Parties: IN RE ESTATE OF ANNIE KOTHE. [*] v. HENRY DREWES, SR., ET AL., ADMINISTRATORS, APPELLANTS MARIE GONSCHIOR, APPELLEE,
• Court: Nebraska Supreme Court

268 N.W. 464

131 Neb. 531

IN RE ESTATE OF ANNIE KOTHE. ^[*]

MARIE GONSCHIOR, APPELLEE, v. HENRY DREWES, SR., ET AL., ADMINISTRATORS, APPELLANTS

No. 29696

Supreme Court of Nebraska

July 14, 1936

APPEAL from the district court for Jefferson county: FREDERICK W MESSMORE, JUDGE. Reversed and dismissed.

Judgment reversed and appeal dismissed.

Syllabus by the Court.

1. A practicing attorney should not sign a bond in a legal proceeding as surety and such bond should not be approved but if it is approved the attorney is estopped from asserting its invalidity. Comp.St.1929, § 12-114.

2. Where the county judge, in a probate matter, approves an appeal bond without the required affidavit of qualification and justification of sureties, a surety on the bond will be estopped from alleging its invalidity, notwithstanding the fact that the statute mandatorily requires such an affidavit. Comp.St. 1929, §§ 20-2223, 20-2224.

3. Statutory requirements relating to appeals, and more especially to appeal bonds, are mandatory and a failure to conform substantially thereto forfeits one's right to appeal.

4. The constitutional provision declaring that the right to be heard in all civil cases in the court of last resort, by appeal, error or otherwise, shall not be denied, does not prohibit the legislature from prescribing reasonable rules and regulations for the review of a cause by appeal, such as requiring a bond to be given as a prerequisite of an appeal from the county court to the district court in a probate matter. Comp.St.1929, § 30-1603; Const. art. 1, § 24.

5. The legal inference of approval of an appeal bond by a county judge who has accepted the bond, marked it filed, and spread it upon the docket, should be limited to a bond conforming to the statute. Comp.St.1929, § 30-1603.

6. A lack of formal approval of an appeal bond, on appeal from the county court in a probate matter, cannot be taken advantage of by appellee in the district court except by specific objection. Comp.St.1929, § 30-1603.

7. Where an appeal bond, on appeal from the county court on accounts of administrators, was given with but one surety and was otherwise defective, and where, notwithstanding the appellee's repeated and specific objections in the district court, appellant repeatedly refused to amend the bond, the district court had no jurisdiction and should have sustained motions for nonsuit and dismissal. Comp.St.1929, § 30-1603.

Appeal from District Court, Jefferson County; Messmore, Judge.

Proceeding in the matter of the estate of Annie Kothe, deceased, on the objections of Marie Gonschior, heir at law, to the final report of Henry Drewes, Sr., and another, administrators. From a decree of the county court, the heir at law appealed to the district court, and from the district court's refusal to nonsuit the heir at law, the administrators appeal.

Reversed and dismissed.

Rain & Rain, L. R. Doyle and Frank L. Rain, for appellants.

John C. Hartigan, H. C. Schoening and Henry J. Beal, contra.

Heard before GOSS, C. J., GOOD, DAY, PAINE and CARTER, JJ., and BLACKLEDGE and LANDIS, District Judges.

OPINION

LANDIS, District Judge.

Marie Gonschior, heir at law, appealed to the district court from a decree by the county court on the accounts of the administrators of the estate of Annie Kothe, deceased. The administrators appeal to this court from a denial by the district court to nonsuit the appellee heir at law herein because of defective appeal bond and failure of filing pleadings making issues on appeal.

The bond furnished by appellee herein to perfect the appeal from the county court to the district court is defective in the following particulars: No formal approval appears to have been made of the bond by the county judge; only one surety was offered; the single surety was an attorney of record; and no affidavit of qualification and justification of the surety was given.

The defective appeal bond was brought to the attention of the counsel for the appellee and the trial court first by motion for nonsuit, assigning as one of the reasons "that the bond does not conform to the requirements of the statute." The attorney who was surety on the bond then asked leave to withdraw objections to administrators' report. Motion for nonsuit was renewed. Then motion to dismiss was made "for the reason the bond now on file does not conform to the requirements of the statutes, as there is only one surety and no justification for any surety."

When the first witness was called, objection to the taking of any testimony in the action was offered on the grounds that no issues were made up in the action, that the bond did not meet the requirements of the statutes in that there was only one surety, no justification of that surety, and the surety was an attorney of record and in fact. At the end of the testimony the motion to dismiss was again made, one of the grounds of which was that there was only a single surety to the appeal bond. All of the motions for nonsuit and dismissal were overruled.

Section 12-114, Comp. St. 1929, provides: "No practicing attorney shall be taken as surety on any official bond; or bond in any legal proceedings in the district in which he may reside."

A practicing attorney should not sign a bond in a legal proceeding as surety. Such a bond should not be approved, but if approved the attorney is estopped from alleging its invalidity and it may be enforced against him. Tessier v. Crowley, 17 Neb. 207, 22 N.W. 422. Section 12-114, supra, is based upon considerations of sound public policy. The assuming of personal liability by an attorney for his client is properly prohibited. The historical background, sound ethics, and the well-settled rule both in England and this country challenge an attorney never to place himself in an attitude of encouraging litigation. Obedience to law is an attribute of ideal citizenship. The orderly administration of justice is severely handicapped when an attorney who takes an oath on admission as practitioner and court officer disobeys the plain mandate of the statute.

Sections 20-2223 and 20-2224, Comp. St. 1929, provide for affidavit of qualifications and justification of sureties to undertakings, bonds and recognizances provided by the statutes. Section 9522, Comp. St. 1922, declared that county judges "shall have the right to require the person offered as surety to make an affidavit of his qualifications." In 1923 the legislature amended section 9522 and passed House Roll No. 364 (Laws 1923, ch. 112), providing that county judges "shall require the person offered as surety to make an affidavit of his qualifications." In 1927 (Laws 1927, ch. 68), section 9522, as amended, was repealed, and section 20-2223 was enacted into law and again provided that county judges "shall require the person offered as surety to make an affidavit of his qualifications."

It must be presumed that the law-making body of the state meant what was enacted when it repealed what was a permissive requirement, "shall have the right to require," and twice making a mandatory direction, "shall require." A county judge would be justified in withholding approval of a bond if the requirement was not complied with. But, if approved without the justification affidavit, the surety would be estopped from alleging its invalidity and the bond liable to enforcement.

Article 16, ch. 30, Comp. St. 1929 (sec. 30-1601 et seq.) provides for appeals in probate matters. Section 30-1603 thereof provides: "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."

Section 9999, Comp. St. 1922, before 1923 required for appeal a recognizance "with sureties," and it was held in construing this section in Whetstone v. State, 109 Neb. 655, 192 N.W. 124: "For the purpose of an appeal by a defendant who has been convicted of a misdemeanor in a prosecution before a justice of the peace, a recognizance with one surety only does not comply with a statutory requirement for a recognizance 'with sureties,' and is fatally defective."

For the purpose of perfecting an appeal, this seems to be the view taken by the courts generally. In Whetstone v. State, supra, there is cited Harris v. Regester & Sons, 70 Md. 109, 16 A. 386; State v. Fitch, 30 Minn. 532, 16 N.W. 411; Gibson v. Lynch, 5 N.C. 495, 1 Murph. 495; Jones v. Sykes, 5 N.C. 281, 1 Murph. 281; North American Coal Co. v. Dyett, 4 Paige Ch. (N.Y.) 273; White v. Rintoul, 6 N.Y.S. 259, as sustaining authority.

In Killian v. State, 114 Neb. 4, 205 N.W. 575, wherein section 29-611, Comp. St. 1929, was considered, it was held that the provisions of this section regulating appeals from an inferior court in...