In re Hoagland's Estate

• Decision Date: 16 January 1935
• Docket Number: 29074.
• Citation: 258 N.W. 538,128 Neb. 219
• Parties: IN RE HOAGLAND'S ESTATE. v. HOAGLAND. LESHARA STATE BANK
• Court: Nebraska Supreme Court

258 N.W. 538

128 Neb. 219

IN RE HOAGLAND'S ESTATE.

LESHARA STATE BANK v. HOAGLAND.

No. 29074.

Supreme Court of Nebraska.

January 16, 1935

Syllabus by the Court.

1. The term " proceeding," as employed in sections 20-852 and 20-853, Comp. St. 1929, includes the " filing of an appeal bond" to obtain a review of a judgment of the county court in a probate proceeding, and the right of amendment of such bond is within the purview of, and governed by, the sections referred to herein.

2. Peter v. Finzer, 116 Neb. 380, 217 N.W. 612, 65 A.L.R. 1419, reaffirmed.

3. Under the Negotiable Instruments Law, there is no extension of a bill or note, so as to discharge a person secondarily liable thereon, where another bill or note, either of the maker or a third person, is taken merely as col lateral or additional security, and there is no agreement postponing the remedy, although indulgence may in fact be granted.

4. Taking as additional security for a matured note a new note payable on demand is not an " extension" as that term is employed in the Negotiable Instruments Law. In this connection, " on demand after date" is the same as " on demand."

5. Evidence in the record examined, and held to sustain the judgment of the district court.

Appeal from District Court, Saunders County; Hastings, Judge.

Proceedings in the matter of the estate of George Hoagland, deceased wherein the Leshara State Bank filed claim, which was opposed by Hazel Hoagland, executrix of the last will and testament of George Hoagland, deceased. From a judgment of the district court, on appeal from an order of the county court, granting the claim, the executrix appeals.

Affirmed.

Robins & Yost, of Fremont, for appellant.

J. H Barry, of Wahoo, for appellee.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, and DAY, JJ., and ELDRED, District Judge.

EBERLY, Justice.

This is, in substance, an action at law upon a promissory note in the following form:

" $2,750.

" Leshara, Nebraska, June 12th, 1930.

" On demand, after date, we, or either of us, promise to pay to the order of the Leshara State Bank, Leshara, Nebraska, Twenty-seven hundred fifty Dollars. For value received, negotiable and payable at the Leshara State Bank, Leshara, Nebraska, with interest," etc. (Signed) " J. R. Magley, Mrs. J. R. Magley, Geo. Hoagland."

George Hoagland died and a claim in usual form, based upon this note, was filed in the matter of deceased's estate in the county court of Saunders county.

To the allowance of this claim the executrix of this estate presented objections, in writing, which, so far as essential to an understanding of the controlling issues, may be summarized as follows: " 3. If any liability (of George Hoagland was created by this note), same is as surety and secondary to liability of Joe and Mae Magley. 4. Said note has been extended from time to time without the knowledge or consent of George Hoagland and he was released therefrom by reason thereof."

On a hearing of the claim it was disallowed by the county court. Claimant prosecuted an appeal to the district court for Saunders county where, upon a trial on the merits, judgment was entered for claimant.

The executrix of the George Hoagland estate prosecutes an appeal to this court, and presents two contentions for our consideration, viz.: (1) The district court erred in denying motions of the executrix for dismissal of the appeal because of alleged failure of claimant to seasonably execute and tender a proper appeal bond as required by law; and (2) that George Hoagland and his estate had been, as a matter of law, released by reason of extension of time by the payee of this note to J. R. Magley and Mrs. J. R. Magley.

In support of her first contention appellant insists that section 30-1603, Comp. St. 1929, is applicable and controlling. This section 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, conditioned that the appellant will prosecute such appeal to effect without unnecessary delay, and pay all debts, damages and costs that may be adjudged against him."

Appellee contends that the determining statutes are sections 27-540 and 21-1302, Comp. St. 1929.

By section 27-540, it is provided: " In civil actions brought under the provisions of this chapter either party may appeal from the judgment of the county court, in the same manner as provided by law in cases tried and determined by justices of the peace. The amount of the bond or undertaking taken shall be double the amount of the judgment and costs, and shall be approved by the county judge"

Section 21-1302 provides: " The party appealing shall, within ten days from the rendition of judgment, enter into an undertaking to the adverse party, with at least one good and sufficient surety to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned: First. That the appellant will prosecute his appeal to effect and without unnecessary delay; Second. That if judgment be adjudged against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant."

The legislative history of these sections discloses the following: An act entitled, " An act concerning the organization, powers and jurisdiction of probate courts" (passed, and took effect, March 3, 1873) covered the organization, general jurisdiction, exclusive probate jurisdiction, and general powers exercisable in probate jurisdiction, including, " First. To hear and determine claims and set-offs in the matter of estates of deceased persons." Section 4. By section 26 of this act it was provided: " In civil actions brought under the provisions of this chapter, either party may appeal from the judgment of the probate court, or prosecute a petition in error, in the same manner as provided by law in cases tried and determined by justices of the peace. The amount of the bond or undertaking taken shall be double the amount of the judgment and costs, and shall be approved by the probate judge." Gen. St. 1873, p. 263. The terms of this enactment, with certain amendments immaterial so far as the question under consideration is concerned, have been continued in force and effect, and now appear as sections 27-501, 27-502, 27-503, 27-504, and 27-540, Comp. St. 1929.

The reference contained in section 27-540 to " in the same manner as provided by law in cases tried and determined by justices of the peace" refers to section 21-1302. This section was enacted as section 1007 of our Civil Code, adopted in 1866. And by section 17, art. 5, of the Constitution of 1875, it was provided: " Appeals to the district court from the judgments of county courts shall be allowed in all criminal cases, on application of the defendant; and in all civil cases, on application of either party, and in such other cases as may be provided by law."

However, in 1881, chapter 47 of the laws of that year was adopted, bearing as a title, " An act providing for an appeal from the decision of the county court in certain matters." This purports to be an independent act and contains no repealing clause, and in terms in no manner refers to any laws previously enacted. Section 3 of this act now appears as section 30-1603, Comp. St. 1929, as hereinbefore quoted.

The claim in suit was disallowed by the county court on April 21, 1933, and on April 29, 1933, an appeal bond was filed by plaintiff bank in the county court in this cause conforming in terms to the requirements of section 21-1302, Comp. St. 1929. On the same day the " bond and surety thereon" were approved by the county judge. On May 6, 1933, a transcript of proceedings, certified to by the county judge as of May 2, 1933, was duly filed in the office of the clerk of the district court for Saunders county. On June 2, 1933, the executrix of the Hoagland estate, appearing generally in the district court, presented a motion for an order dismissing the appeal because of failure to have two sureties sign the appeal bond, and because two sureties failed to execute and indorse upon such bond their justification as required by section 20-2223, Comp. St. 1929.

On June 22, 1933, the district court overruled this motion to dismiss. On June 30, 1933, the executrix filed " objections to claim of Leshara State Bank." On October 4, 1933, the issues were tried to the court " on the pleadings and the evidence, and the cause submitted on briefs."

On October 25, 1933, a motion was presented to the court on behalf of the bank " for permission to amend the appeal bond heretofore filed herein, by adding an additional surety thereon instanter." On the same day a decree was entered by the trial court permitting claimant " to amend the said appeal bond filed herein, by adding the name of an additional surety thereon, and also permitting it to amend the transcript filed herein showing such amendment to such bond." The court also, as part of the same decree, entered a finding and judgment for claimant, as prayed.

The record also indicates that an additional surety signed the appeal bond on October 25, 1933, and the two sureties, together, on the same day, executed the affidavit of justification in compliance with sections 20-2223 and 20-2224, Comp. St. 1929. The bond so amended was subsequently refiled in the county court and transmitted to the district court.

The executrix on October 28, 1933, filed objections in writing to the permission to amend; also filed a motion for a new trial and a " Motion to Set Aside Judgment and Supplemental Motion to Dismiss Appeal from Disallowance of Leshara State Bank Claim," all of which were overruled...