In re The Estate of J. H. Ald v. Appling

• Decision Date: 12 April 1913
• Docket Number: 18,069
• Citation: 89 Kan. 340,131 P. 569
• Parties: In re the Estate of J. H. ALD, a Feeble-minded Person, etc., Appellee, v. W. L. APPLING, Guardian, etc., Appellant
• Court: Kansas Supreme Court

131 P. 569

89 Kan. 340

In re the Estate of J. H. ALD, a Feeble-minded Person, etc., Appellee, v. W. L. APPLING, Guardian, etc., Appellant

No. 18,069

Supreme Court of Kansas

April 12, 1913

Decided January, 1913.

Appeal from Sedgwick district court, division No. 2.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. APPEAL--From Probate Court--Adjudging Person to be Feebleminded. An appeal may be taken from a decision of the probate court adjudging that a person is of feeble mind and incapable of managing his affairs and appointing a guardian for his person or estate.

2. Construction of Statutes Authorizing Appeals from Probate Court. The clause in section 4852 of the General Statutes of 1909 providing that appeals taken in any matter arising under that act shall be "upon the same terms and conditions as are appeals under the provisions of the act respecting executors and administrators" refers to the time and manner of taking appeals and not to the grounds of appeals or to cases in which an appeal may be taken.

3. APPEAL BOND--Approved--Not Indorsed as Filed--Valid. Where an appeal bond in proper form and of approved security is tendered to and received by the probate judge within the time prescribed for taking appeals, and is placed by him among the files in the case without indorsing it as filed, it is filed in contemplation of law.

John D Davis, of Wichita, for the appellant.

S. B. Amidon, D. M. Dale, Jean Madalene, and Benjamin F. Hegler, all of Wichita, for the appellee.

OPINION

JOHNSTON, C. J.:

J. H. Ald, the appellee, was on August 9, 1911, found to be of feeble mind and incapable of managing his affairs by a jury in the probate court of Sedgwick county, and the court thereupon appointed W. L. Appling, the appellant, who was one of the jurors, as guardian. On August 15, 1911, appellee appealed from the judgment of the probate court to the district court, tendering an appeal bond in the sum of $ 200, which was approved but not formally endorsed as filed. On October 7, 1911, a transcript of the proceedings in the probate court was filed in the district court, but the appeal bond was not transmitted with the transcript. On October 16, 1911, a motion was filed in the district court to dismiss the appeal, one of the grounds being the failure of Ald to file an appeal bond. On January 9, 1912, the probate court, in a nunc pro tunc order, formally approved and filed the bond as of the date it was presented, and then transmitted a corrected transcript to the district court. Subsequently the district court overruled appellant's motion to dismiss the appeal, and from that ruling Appling appeals to this court, alleging that there was error in permitting the filing of an appeal bond more than ten days after the decision from which the appeal was taken and in holding that appellee was entitled to an appeal.

Appellant insists that there is no statutory authority for an appeal from such a decision. In the act providing for an inquiry as to the mental capacity of a person and for the appointment of a guardian for his person or estate it is enacted that:

"An appeal may be taken to the district court from any order or decision of the probate court in any matter arising under the provisions of this act upon the same terms and conditions as are appeals under the provisions of the act respecting executors and administrators and the settlement of the estate of deceased persons." (Gen. Stat. 1909, § 4852.)

But it is contended that such an appeal can only be taken on the "terms and conditions" prescribed in the executors and administrators' act, and that although twelve kinds of decisions are named in that act as appealable a decision adjudging a person to be of feeble mind and appointing a guardian is not among them. The expression "terms and conditions" does not refer to the...