McIntosh v. Wheeler

Citation58 Kan. 324,49 P. 77
Decision Date05 June 1897
Docket Number9993
PartiesDAVID MCINTOSH v. D. W. WHEELER, Special Administrator of the Estate of W. J. McIntosh
CourtUnited States State Supreme Court of Kansas

Decided January, 1897.

Error from Marion District Court. Hon. Lucien Earle, Judge,

Judgment reversed and remanded.

King & Kelley, for plaintiff in error.

Hess & Johnson, for defendant in error.

ALLEN J. Johnston, J., concurring. Doster, C. J., having been of counsel, not sitting.

OPINION

ALLEN, J.

On the fourteenth of October, 1891, David McIntosh obtained the allowance, by the Probate Court of Marion County, of a claim amounting to $ 4,880.25, against the estate of W. J. McIntosh, represented by D. W. Wheeler as special administrator. David McIntosh was the general administrator of the estate. The special administrator attempted to appeal from the order, and for that purpose made the necessary affidavit on the thirtieth of October. Whether this affidavit was filed in the Probate Court does not appear. The only notice of appeal given was served on the twenty-second of January, 1892. The certificate of the probate judge to the transcript of the proceedings in his court, which was filed in the District Court, is dated November 25, 1891. On the twenty-seventh of January, 1892 the plaintiff, David McIntosh, moved to dismiss the appeal because not taken within the time or in the manner provided by law. The motion was overruled, and the plaintiff excepted. The ruling of the District Court on this motion is assigned as error.

Section 189 of the Act Respecting Executors and Administrators reads: "All appeals shall be taken during the term at which the decision complained of is made, or within ten days after the making of such decision. Notice of such appeal shall be given in open court and entered on the record, or by written notice to the opposite party, or his attorney of record." Gen. Stat. 1889, P 2975. By section 1, of chapter 157 of the Laws of 1891, it is provided "that each probate court shall hold regular terms, commencing on the first Monday of each month, and shall continue in session until all the business of the term is completed, when the court shall formally adjourn to the next regular term, commencing on the first Monday of the following month."

Even if we assume that the affidavit was filed on the day it was sworn to and that the Probate Court was still in session, there is no pretense that a notice of appeal was given in open court, or that a written notice was served earlier than the twenty-second of January, 1892. This was not in time. The notice is an essential requisite of an appeal, and must be given during the term at which the decision complained of is made, or within ten days after the decision. McClun v. Glasgow, 55 Kan. 182, 40 P. 329.

The court erred in overruling the motion to dismiss the appeal. But it is said that the motion was overruled at the March term, 1892, and that the petition in error was not filed in this court until October, 1894; that it is, therefore, too late to present the error on this ruling to this court; that the plaintiff in error entered a general appearance in the district court and prosecuted his claim therein through three successive trials, and that he thereby waived any error there might be in the ruling of the court on the motion. It was held in Edenfield v. Barnhart, 5 Kan. 225, that "error does not lie to this court from an order of the district court refusing to dismiss an appeal until the case is finally disposed of." To the same effect are Dolbee v. Hoover, 8 Kan. 124; Anderson v Higgins, 35 id. 201; Kansas Rolling Mill Co. v. Bovard, 34 id. 21; ...

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5 cases
  • Bishop v. Foley
    • United States
    • Kansas Supreme Court
    • 8 Junio 1918
    ... ... to the jurisdiction of the district court. Dickerson v ... B. & M. R. R. Co., 43 Kan. 702, 23 P. 936; McIntosh ... v. Wheeler, 58 Kan. 324, 49 P. 77; Hartzell v ... Magee, 60 Kan. 646, 57 P. 502; Thompson v ... Greer, 62 Kan. 522, 524, 64 P. 48 ... ...
  • Bowen v. Wilson
    • United States
    • Kansas Supreme Court
    • 14 Noviembre 1914
    ...80 Kan. 89, 101 P. 633.) The time in which the appellant could appeal commenced when the cause was finally disposed of. ( McIntosh v. Wheeler, 58 Kan. 324, 49 P. 77.) could not extend the time by the filing of an unnecessary motion for a new trial. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 3......
  • Wayman v. Dodd
    • United States
    • Kansas Supreme Court
    • 9 Marzo 1918
    ... ... (Spangler, ... Adm'r, v. Robinson, 20 Kan. 682; McClun v ... Glasgow, 55 Kan. 182, 40 P. 329; McIntosh v ... Wheeler, 58 Kan. 324, 49 P. 77; Pee v. Witt, ... 100 Kan. 171, 163 P. 797.) ... Although ... the questions raised for and against ... ...
  • In re Sarah Ann Richards v. Richards
    • United States
    • Kansas Supreme Court
    • 10 Enero 1920
    ...cases in which it has been so held. ( Spangler, Adm'r, v. Robinson, 20 Kan. 682; McClun v. Glasgow, 55 Kan. 182, 40 P. 329; McIntosh v. Wheeler, 58 Kan. 324, 49 P. 77.) precedents lay it down dogmatically that the affidavit is a prerequisite to the granting of an appeal; that without it the......
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