State ex rel. Simms v. Todd

• Citation: 72 Mo. 288
• Parties: THE STATE ex rel. SIMMS v. TODD, Plaintiff in Error.
• Decision Date: 31 October 1880
• Court: United States State Supreme Court of Missouri

72 Mo. 288

THE STATE ex rel. SIMMS

v.TODD, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1880.

Error to Morgan Circuit Court.--HON. G. W. MILLER, Judge.

REVERSED.

Smith & Krauthoff and B. R. Richardson for plaintiff in error.

J. P. Ross for defendant in error.

HOUGH, J.

This was a proceeding by mandamus to compel the judge of the probate court of Morgan county to grant an appeal from a judgment of said court, allowing a claim of one Gunn against the estate of one Williamson, deceased, of which the relator, Simms, was administrator. The defense made was, that the appeal was not applied for in time. A peremptory writ was awarded, and the respondent has appealed.

It appears from the records of the probate court offered in evidence, that the claim in question was allowed on the 20th day of January, 1877, and that on said day court adjourned until the 5th day of February following, and on that day adjourned until the 10th of said month. On the day last named the following entry appears: “Saturday, February 10th, 1877. Court opened pursuant to adjournment. Present, J. C. Todd, judge, and W. H. Goddard, sheriff. Ordered that court adjourn until Monday, the 2nd day of April next.” The court met on the 2nd day of April, 1877, and the first entry of record of that day begins as follows: “Morgan Probate Court, April term, 1877.” On the succeeding 10th day of April the following entry appears: “Morgan Probate Court, April term, 1877. Court opened pursuant to adjournment. Present, J. C. Todd, judge, and W. H, Goddard, sheriff,” when the following proceedings were had:

TUESDAY MORNING, April 10th, 1877.

N. J. GUNN,

)

vs.

)

)

Affidavit for appeal filed.

JOHN SIMMS,

)

Administrator L. E. Williamson.

)

Now, at this day, comes defendant, by his attorney, and files affidavit for an appeal from the judgment of this court rendered in the above entitled cause, at the January term of this court, and the court, after due deliberation, doth refuse to grant said appeal.

The relator offered in evidence the entries from the records of said probate court of the three several final adjournments of the three regular terms next preceding the January term, 1877, each of which entries was as follows: “Ordered that court adjourn until court in course.”

The probate court of Morgan county holds four regular terms a year, to-wit: on the first Mondays in January, April, July and October. Acts 1847, p. 32, § 9. Under the act establishing the probate court of Morgan county, appeals could be taken within thirty days after the rendition of the judgment, order or decree appealed from. By the general law regulating appeals from probate courts, appeals were required to be taken during the term at which the decision complained of is...