Queen Ins. Co. of Am. v. Cotney
| Decision Date | 09 November 1909 |
| Docket Number | Case Number: 215 |
| Citation | 1909 OK 286,25 Okla. 125,105 P. 651 |
| Parties | QUEEN INS. CO. OF AMERICA v. COTNEY et al. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR--Probate to District Courts--Time--Transcript--Correction. Under section 1881, Wilson's Rev. & Ann. S. 1903, an appeal, when questions of fact may be retried. from the final judgment of a probate court, as such court existed under the laws of Oklahoma Territory, could be prosecuted to the district court of the county in the manner and form of appeals from the justice of the peace.
(a) Such an appeal could be taken by the defendant within 10 days from the rendition of the judgment, by entering into a sufficient undertaking in favor of the adverse party.
(b) It was not necessary that the transcript in such appeal, properly certified, should be filed with the district court within the prescribed 10 days.
(c) Where such appeal is taken in due time by entering into such undertaking, and the certificate of the probate judge or clerk of such court as to the transcript is defective, the party appealing, upon making timely application to the district court to have the same corrected, should be permitted to do so.
2. APPEAL AND ERROR--Theory of Cause--Change on Appeal. A party will not be permitted to have an appeal dismissed on one ground, and on review in this court take a new hold, and sustain on another ground such order of dismissal, unless it goes to an entire want of jurisdiction of the lower court.
(a) Especially is such the case when the alleged additional ground was susceptible of being cured in the lower court by amendment.
Error from District Court, Comanche County; J. T. Johnson, Trial Judge.
Action by J. D. Cotney and others against the Queen Insurance Company of America. From an order dismissing an appeal from the probate court on appeal from a judgment for plaintiffs, defendant brings error. Reversed, with instructions.
Fulton, Stringer & Grant, for plaintiff in error.--Citing: Railway Co. v. Hurst (Kan.) 35 P. 211; Haas v. Lees, 18 Kan. 449; Struber v. Rohlefs (Kan.) 12 P. 830; Patrie v. Colter, 10 Okla. 257; Swoop v. Smith, 1 Okla. 283.
J. L. Hamon and Chas. Mitschrich, for defendants in error.
¶1 Under the law as it existed at the time of the organization of the state government, an appeal from the final judgment of a probate court, when questions of fact were to be retried, could be prosecuted to the district court of the county in the manner and form as appeals from the judgment of the justice of the peace. Section 1881 (chapter 22, art. 15, § 405) Wilson's Rev. & Ann. St. 1903. Such an appeal is taken by the defendant, within 10 days from the rendition of the judgment, entering into an undertaking in favor of the adverse party, with at least one good and sufficient surety, to be approved by the probate judge, in a sum not less than double the amount of the judgment and costs, conditioned as required by the statute. Section 5045 (chapter 67, art. 10, § 118) Wilson's Rev. & Ann. St. 1903. The appeal is taken upon the filing and approval of the undertaking as provided in the foregoing section, and it is not required that the transcript shall be filed with the district court within the 10 days. And when the same is taken in due time by entering into a bond, and the certificate of the probate judge or clerk as to the transcript filed in the district court is defective, the party appealing, upon making timely application for its correction, should be permitted to have the same made. Section 5046 (chapter 67, art. 10, § 119) Wilson's Rev. & Ann. St. 1903; St. L. & S. F. R. R. Co. v. Hurst, 52 Kan. 609, 35 P. 211; St. L., L. & D. R. R. Co. v. Wilder, 17 Kan. (2d Ed.) 239; Bond v. White, 24 Kan. 45; Haas v. Lees, 18 Kan. 449; Struber v. Rohlfs, 36 Kan. 202, 12 P. 830; St. L., K. & S.W. Ry. Co. v. Morse, 50 Kan. 99, 31 P. 676.
¶2 It is further insisted by the defendant in error that the appeal bond was defective in that it does not show to what court it was intended the appeal should be taken, and that the bond should have been in the penal sum of $ 1,113, instead of $ 1,100, and that...
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