Matthews v. Lane

• Citation: 46 S.W. 946,65 Ark. 419
• Parties: MATTHEWS v. LANE
• Decision Date: 25 June 1898
• Court: Arkansas Supreme Court

46 S.W. 946

65 Ark. 419

MATTHEWS v. LANE

Supreme Court of Arkansas

June 25, 1898

Appeal from Craighead Circuit Court, Jonesboro District FELIX G TAYLOR, Judge.

Judgment affirmed.

E. F Brown, for appellants.

Appellant having filed the affidavit for appeal required by statute, had taken all steps necessary to confer jurisdiction upon the circuit court. Sand. & H. Dig., § 1149; 35 Ark. 302; 51 Ark. 344; 13 S.W. 250. The probate court should have been made to enter up, nunc pro tunc, the order granting the appeal. 43 Ark. 33; Am. Dig. (1893) p. 135, § 302. The same strictness of rule is not applied to appeals from probate to circuit court as from circuit to the supreme court. 7 Ark. 170.

John K. Gibson and J. C. Hawthorne, for appellee.

The bill of exceptions was not filed or made part of the record, hence there is nothing before this court to enable it to review the decision of the court below. 46 Ark. 17; 44 Ark. 482; 2 Ark. 14; 25 Ark. 503. The affidavit for appeal is not shown to have been either presented to or passed upon by, the probate court. Hence it is no part of the record. 38 Ark. 594.

OPINION

BUNN, C. J.

The note sued on this case was executed by the deceased, W. W. Constant, and delivered to H. H. Hadley, on the 10th day of January, 1889, due and payable twelve months after date, with 6 per cent. interest from date; principal $ 1,000. On the 24th day of August, 1894, the note was assigned and transferred to appellant, W. B. Matthews, by Hadley, for value.

On the 28th of May, 1895, Matthews presented the note for allowance to W. T. Lane, the appellee, the then administrator of the estate of Constant, who had died in the meantime, and the same was disallowed, and the same was filed in the probate court for suit, and Lane, the administrator, answered at the July term(1895, and with his answer field his counter-claim, to which Matthews filed his response, and, on motion on Lane, Hadley was made a party defendant.

Without date or file marks, a petition of Matthews appears in the record, made to the circuit judge, asking an order on the probate judge requiring him to perfect his record of the July term, 1890 [1895], of the probate court, showing that he had in fact at said term taken the appeal, and that a minute of the same had not been made, as should have been done. The affidavit for the appeal appears in the record as of the date of 24th July, 1895, but it does not appear to have been presented or filed in the probate court.

On the 30th September, 1896, in term time, Lane filed his motion in the circuit court to dismiss the appeal, and, on hearing of the same, the court held that no appeal had been granted in the case, and the appeal was thereupon dismissed, over the objection of Matthews. No action appears to have been taken on the petition for writ of mandamus on the probate judge and the record does not show that an appeal was taken. The dismissal of the appeal disposed of the case in the circuit court, and from that order this appeal was taken, the proceeding in the probate court including the evidence, being presented in the transcript sent up to this court. No final action seems to have been taken on the petition for the writ of mandamus against the probate court to compel it to make its record speak the truth, and thereby to show that this appeal was taken in due form; and we are unable to see whether or not there was any connection whatever between this petition and the subsequent motions of defendant to dismiss, if indeed, any such connection would change the status of things. On the motion to dismiss the appeal, or on the petition for writ of mandamus, we cannot say which, evidence was taken to show what really did occur in the probate court at the time the appeal is alleged to have been taken; but this evidence is too indefinite and uncertain to serve as a correction of the record in the latter case, and equally so to supply a record in the former case, if such, indeed,...