Skinner v. Holt

• Decision Date: 23 December 1896
• Parties: SKINNER v. HOLT et al.
• Court: South Dakota Supreme Court

69 N.W. 595

9 S.D. 427

SKINNER v. HOLT et al.

Supreme Court of South Dakota

December 23, 1896

Appeal from circuit court, Hutchinson county; E. G. Smith, Judge.

Proceeding between Bertha R. Skinner and A. H. Holt and George Holt co-partners as Holt Bros., and others, to determine the rights of the parties to the proceeds of a policy of insurance on the life of John J. Skinner, deceased. From an order of the county court subjecting the proceeds of said policy to the payment of decedent's debts, said Bertha R Skinner appealed to the circuit court, where the judgment of the county court was reversed, and Holt Bros. appeal. Reversed.

Wellington Brown, J. D. Elliot, and Warren Dimock, for appellants. Chas L. Brockway, for respondent.

FULLER J.

On the 11th day of August, 1894, plaintiff, the surviving wife of John J. Skinner, deceased, appealed from an order of the county court, made and entered on the 4th day of that month subjecting, in the due course of administration, the proceeds of a $2,000 life insurance policy to the payment of decedent's debts; and this appeal is from a judgment of the circuit court, entered on the 16th day of July, 1895, reversing said order of distribution, and directing the administrator to pay over to plaintiff, for the separate use of herself and two minor children, the avails of said insurance policy, to the exclusion of defendants and appellants, who are general creditors of the estate.

The facts, so far as essential, may be stated briefly as follows: In the month of August, 1893, John J. Skinner died, intestate, leaving surviving him his wife, the respondent, Bertha R. Skinner, and their two minor children, as the sole heirs at law of his estate, which consisted wholly of the $2,000 policy of insurance upon his life, made payable to the insured, his executors, administrators, or assigns. After the demise of said John J. Skinner, the duly appointed and acting administrator of the estate collected from the insurer, and received into his possession as such administrator, and for the benefit of the estate, the $2,000 life insurance, and thereafter and in due form applied to and obtained from the county court, over respondent's objection, the order of distribution complained of and appealed from to the circuit court, and by which the avails of the said policy were subjected to the payment of certain claims existing in favor of defendants and appellants against said John J. Skinner in his lifetime. When the cause was reached for trial, at the October, 1894, term of the circuit court, counsel, appearing for all the defendants, moved the court to dismiss the appeal, upon the ground that the undertaking on appeal did not run to the state, nor specify the place of residence of either of the persons executing the same as sureties thereto. During the pendency of this motion, opposing counsel applied for and obtained an order by which he was permitted to file a sufficient undertaking, and the motion to dismiss the appeal was overruled. The rulings of the court upon the motion to dismiss the appeal, and upon the application to substitute a sufficient undertaking, are assigned as error, and present the first question for our consideration and review.

The conditions of the original undertaking, which was duly approved by the county judge, conform to and are expressed substantially in the language of section 5967, Comp. Laws which specifies the requisite conditions of an undertaking on appeal from the county court. Omitting formal recitals, and that part of the undertaking which, in ordinary phraseology, describes in clear and concise language the proceedings in and judgment of the county court, by the rendition and entry of which plaintiff feels aggrieved and from which she appeals to the circuit court, the conditions of said undertaking are as follows: "Now, therefore, we, Bertha R. Skinner, as principal, and E. A. Sherman and R. G. Parmley, as sureties, do hereby undertake and bind ourselves that the said Bertha R. Skinner will prosecute her appeal with due diligence, and will abide, fulfill, and perform whatever judgment, decree, or order may be rendered against her by the circuit court, and that she will pay all damages which the opposite parties may sustain by reason of such appeal, together with all the costs that may be adjudged against her; and we further undertake and bind ourselves that, if the judgment, decree, or order appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant shall pay the sum directed to be paid and distributed by the administrator of the said estate to the creditors of the same. Conditioned, however, that our liability hereunder shall not exceed the sum of one thousand dollars." In the affidavit attached to (and by section 5232, Comp. Laws, made a part of) the foregoing instrument, each surety for himself swears "that he is a resident of Minnehaha county and state of South Dakota, and that he is worth the sum of $1,000 over and above all his debts and liabilities, and exclusive of all property exempt from levy and sale on execution." Though subject, perhaps, to the objections interposed, because defective and voidable as a statutory undertaking, the instrument under consideration contains all the essential elements of a binding obligation at common law, and is amply sufficient to give the court jurisdiction to allow the new undertaking to be filed upon the seasonable application of one who appears to have taken her appeal in the utmost good faith. Towle v. Bradley, 2 S. D. 472, 50 N.W. 1057; Woodman v. Calkins, 12 Mont. 456, 31 P. 63; Saterlee v. Stevens, 11 Ohio, 420; Pray v. Wasdell, 146 Mass. 324, 16 N.E. 266; Mix v. People, 86 Ill. 329; Field v. Schricher, 14 Iowa, 119. Section 5235, Comp. Laws, is remedial in its character, and was designed to authorize an appellate tribunal, having jurisdiction of the subject-matter, to permit a new undertaking to be filed, in order to stay proceedings, and make an appeal, which has been taken in good faith, effectual, unless the defects or omissions are such as render the original undertaking void, and vest no jurisdiction in the court to allow an amendment, or the performance of an essential act omitted through mistake, accident, or inadvertence. A question measurably different is presented when there is no undertaking on appeal, or the defects therein or...