Peters v. Peters

• Decision Date: 21 November 1927
• Docket Number: 11711.
• Parties: PETERS v. PETERS et al. SAME v. POLSTER.
• Court: Colorado Supreme Court

261 P. 874

82 Colo. 503

PETERS v. PETERS et al.

SAME v. POLSTER.

No. 11711.

Supreme Court of Colorado, En Banc.

November 21, 1927

Error to District Court, El Paso County; L. C. Stephenson, Judge.

Petition by Stella F. Peters against Harold C. Peters and others, and against Erma E. Polster, for determination of heirship. From an adverse decree of district court on appeal from county court, petitioner brings error.

Affirmed.

James A. Orr, John E. Little, and H. T. McGarry all of Colorado Springs, for plaintiff in error.

Samuel H. Kinsley and Leon H. Snyder, both of Colorado Springs, for defendants in error.

DENISON J.

On appeal by them from the county to the district court of El Paso county, Harold C. and John H. Peters and Erma E Polster, their sister, had a decree that they were the sole heirs of Albert H. Peters, deceased, whose widow, Stella F Peters, plaintiff in error, claimed to be. She brings the case here for review.

The plaintiff in error claims that the appeal bonds, one by Harold and John and one by Erma, on appeal to the district court, were insufficient, (1) because executed by an attorney in fact, without the power of attorney being shown, and (2) because not in proper form, as required by statute. For these reasons she moved to dismiss the appeals, and the motion was denied.

As to the first ground, the evidence on which the court made the decision is not in the record, and, since the motions were denied and the record does not show the contrary, we must suppose that sufficient authority of the attorney in fact was shown. As to the second ground, the form of each bond is according to the statute (C. L. § 5777) in all respects, except that it omits the words that the appellant 'shall abide, fulfill and perform whatever judgment may be rendered against him in that cause by the district court.' We think that the bond substantially satisfies the statute; there was nothing that the appellants could be required to 'abide, fulfill or perform,' except to pay costs and damages caused by the appeal, and these were expressly provided for in the bonds. The conditions in the bonds are more favorable to appellee than if strictly according to the statute. It is true that in D. & R. G. Co. v. Paonia D. Co., 49 Colo. 281, 112 P. 692, we held that, upon appeal from a judgment not for the payment of money, a bond conditioned as required on appeal from a judgment for the payment of money was insufficient, but in the present case the bond includes, not only the conditions required in case of a money judgment, but all those required in case of the other sort, with the exception, above stated, of a condition which had no fitness to the case in hand. We cannot say that there was error in denying the motions to dismiss.

In addition to the above, C. L. § 5623, is as follows:

'If, at any time, pending an appeal, * * * it shall appear to the appellate court, * * * that the appeal bond * * * is defective or insufficient, * * * such appellate court * * * shall order another appeal bond * * * or such other and further security as * * * shall seem proper; Provided, That the appellant or appellants, or his, her or their attorney of record shall have been served with at least twenty-four (24) hours' written notice of the application of the appellee or appellees for such order; and provided, further, that in case the appellant or appellants shall fail to comply with said order within ten days after the making of the same, the appeal shall be dismissed.'

The effect of this is to abolish the motion to dismiss an appeal for insufficiency of the bond and substitute a motion for a new bond. No such motion was filed. The motion to dismiss, then, was properly denied.

Plaintiff in error asserts that there is no right to appeal from a determination of heirship. We do not assent to that proposition. The purpose of the statute (C. L. §§ 5162-5166) for such determination was to provide a way to settle titles which come through estates. Unless, therefore, we regard the decree of the court as final, we shall subvert the purpose of the act. If it is final, it is of the highest gravity and importance, involving unlimited values. It is hardly possible that the Legislature intended no appeal. That they intended an appeal is shown in C. L. § 5164, which says that the decree shall 'determine the descent * * * unless an appeal be taken as in other cases.' 'Determine the descent' means that the judgment is final, and, if what follows it does not mean that appeals in this proceeding may be taken as in other cases in which appeals are provided for, it is without effect. We must give effect if we can, and so must say that it permits appeals. As to appeals in probate matters, see C. L. § 5379.

Shortly after the death of the intestate, plaintiff in error obtained letters of administration representing herself to be his widow. Harold petitioned the county court for revocation of her letters on the ground that she was not the widow, and was an unfit person to administer the estate. The question of her marriage was found in her favor, and the petition to revoke was denied. An appeal was taken to the district court. She moved to dismiss the appeal on the ground, among others, that the decision was not a final judgment, and that appellant Harold was not a party aggrieved, and her motion was granted. A writ of error from this court (Case No. 11176), was dismissed on motion of plaintiff in...