McIntosh v. Lochamier's Estate

• Decision Date: 14 October 1937
• Docket Number: No. 15973.,15973.
• Parties: McINTOSH v. LOCHAMIER'S ESTATE.
• Court: Indiana Appellate Court

104 Ind.App. 149

10 N.E.2d 445

McINTOSH

v.LOCHAMIER'S ESTATE.

No. 15973.

Appellate Court of Indiana, in Banc.

October 14, 1937.

Appeal from De Kalb Circuit Court; Wm. Endicott, Judge.

Proceeding on the claim of Alta McIntosh against the Estate of Daniel Lochamier, deceased, Otto Gengnagel, executor. From a judgment for the estate, claimant appeals.

Appeal dismissed.

Howard S. Grimm, of Auburn, for appellant.

Dan M. Link, of Auburn, for appellee.

BRIDWELL, Chief Judge.

Appellant filed his claim against the estate of Daniel Lochamier, deceased, seeking to recover an amount alleged to be due him for services rendered to the decedent in his lifetime. In due course the cause was submitted to the court and a jury for trial, which resulted in a verdict by the jury in favor of the defendant estate. Motion for a new trial was duly filed, was overruled, and judgment on the verdict followed. It was from such judgment that appellant seeks to prosecute this appeal.

A verified motion to dismiss the appeal has been filed by appellee, it being asserted therein that the appeal “involves a decision growing out of and connected with proceedings relative to a settlement of a decedent's estate,” and requires that an appeal bond be filed by appellant, which has not been done, and because of such failure to file bond that this court has no jurisdiction.

[1][2] It is not disputed that the judgment sought to be reviewed is one rendered in an action growing out of a matter connected with a decedent's estate, nor is it contended that any bond has ever been filed in accordance with our statutory provisions for an appeal in this class of cases, but appellant says that appellee, having failed to move for a dismissal of the appeal before submission of the cause, has waived the right to move for a dismissal. Conceding without deciding that appellant is right in this contention, it does not necessarily follow that this court is authorized to determine this appeal on its merits. The right to appeal is not a vested right, but is one granted by statute, and, in order to confer jurisdiction upon an appellate tribunal, it is required that the steps provided for by statute to consummate an appeal be taken. Jurisdiction cannot be conferred by agreement of parties, nor by lack of action on the part of the successful litigant in the court below. It is incumbent on an appellant to do that which the Legislature by statute has said he shall do in order to give jurisdiction to an appellate tribunal and vest it with the right to determine the legal questions sought to be presented by the appeal. It is within the province of one named as an appellee in an attempted appeal to acknowledge or waive the service of notice of appeal, to execute a joinder in error or an agreed submission, to appear and thus by his own voluntary act or acts confer on this court jurisdiction over his person, but, where the statute granting the right to appeal expressly provides that the party seeking to appeal shall take certain designated steps in order to perfect the same, compliance with the statutory requirements cannot be ignored and jurisdiction conferred by some other method not provided for by statute.

The applicable statutes relative to appeals from judgments in actions of the class to which the instant case belongs (sections 6-2001, 6-2002, Burns' Ind.Stat.Ann.1933, sections 3277-3278,...