Security Trust Company v. Jaqua

• Decision Date: 05 June 1925
• Docket Number: 24,795
• Citation: 148 N.E. 148,200 Ind. 732
• Parties: Security Trust Company, Executor, v. Jaqua et al
• Court: Indiana Supreme Court

148 N.E. 148

200 Ind. 732

Security Trust Company, Executor, v. Jaqua et al

No. 24,795

Supreme Court of Indiana

June 5, 1925

[.] This opinion was not available to the Reporter's office before this time.

1. APPEAL---Appeal Bond---For Insufficient Amount---Defect may be Waived.---The right to insist on a dismissal of an appeal because the appeal bond is not for a sufficient amount may be waived. p. 735.

2. APPEAL---Dismissal of Appeal---Waiver of Right---By Appearance and Delay in Filing Motion.---Where appellee appeared in the court to which an appeal had been taken in opposition to appellant's petition for further extension of time to file briefs, and motion to dismiss the appeal was not filed until two months later, the right to have a dismissal because of the insufficiency of the appeal bond was waived. p. 735.

3. APPEAL---Briefs---Imperfect Compliance with Rules---Not Ground for Dismissal.---The mere fact that appellant has imperfectly complied with the rules for the preparation of briefs is not cause for dismissing the appeal, even though points relied on by appellant may not be so presented as to require the court to consider them and the judgment might be affirmed for that reason. p. 735.

4. APPEAL---Final Judgment in Estate Matters---From which Appeal Lies.---A judgment rendered on exceptions to an executor's final report which adjudged the amount of the executor's liability, decreed final distribution approved his final report when amended to conform to the court's orders, and ordered the executor discharged thereafter, was a final judgment from which an appeal would lie under 2906 Burns 1914. p. 735.

5. APPEAL---Jurisdiction---Amount Involved---Does not Confer Jurisdiction on Supreme Court.---Under the present statute regarding jurisdiction of appeals (Acts 1925, ch. 201, p 487, 1356 Burns 1926), the fact that more than $6,000 is involved does not give the Supreme Court jurisdiction of an appeal. p. 736.

From Morgan Circuit Court; James B. Wilson, Special Judge.

Exceptions by Alonzo L. Jaqua and others to the final report of the Security Trust Company as executor of the will and estate of Pierre Gray, deceased. From a judgment ordering the report amended to correspond with the court's finding as to the amount due from the executor, the executor appeals. (Cause transferred to Appellate Court.)

Motion to dismiss appeal denied.

Matson Carter, Ross & McCord, for appellant.

Shirley Whitcomb & Dowden and Frank B. Jaqua, for appellees.

OPINION

Per Curiam.

Appellant filed its final report as executor of the will of Pierre Gray, deceased, stating that it was chargeable as executor with the sum of $ 34,915.97, to which report, exceptions were filed. A change of venue from the county having been taken, the trial court sustained said exceptions and set aside the approval of certain current reports previously filed, and entered a finding and judgment as follows:

"The above cause coming on for trial is submitted to the court for trial and judgment without the intervention of a jury, and the court, having heard the evidence and argument of counsel, and having taken the cause under advisement, now makes the following finding, judgment and orders herein: . . . That the administrator de bonis non of the estate of Bayard S. Gray and the administrator de bonis non of Eliza J. Gray are each entitled to one half of the present proceeds and property in said estate. . . . That said executor shall make a new and final report charging itself as executor herein . . . with the sum of . . . amount due at this date $ 47,310.29. And which amount the court now orders and adjudges is due to said estate from said executor and payable in cash, in addition to the real estate mentioned and described in its first report, and said executor is now ordered to pay said sum in equal amounts, one half to each, to the administrator d. b. n. of Bayard Gray and to the administrator d. b. n. of Eliza J. Gray. It is further ordered that the exceptors recover of Security Trust Company their costs and charges herein laid out and expended. It is further ordered that the report as now ordered by the court be filed with the clerk of the proper court on or before the 16th day of July, 1924, and that, upon distribution as herein ordered and due proof of notice of final settlement, said executor be discharged. All of which is finally ordered, adjudged and decreed by the court."

Appellees have moved to dismiss the appeal for the alleged reasons: (1) That no final judgment was rendered; (2) that it is not an interlocutory...