Vail v. Page
| Decision Date | 26 January 1911 |
| Docket Number | 21,626 |
| Parties | Vail v. Page |
| Court | Indiana Supreme Court |
From Wells Circuit Court; Charles E. Sturgis, Judge.
Action by Charles Page against Aaron T. Vail and others. From a judgment for plaintiff, defendant Vail appeals.
Appeal dismissed.
Simmons & Dailey and Vesey & Vesey, for appellant.
Lesh & Lesh and John S. Branyan, for appellee.
In April, 1905, appellee brought an action in the Miami Circuit Court against the Fort Wayne Cooperage Company for damages for personal injuries; in the following June recovered judgment in the sum of $ 6,500, from which an appeal was taken to the Appellate Court; and the bond for the appeal was executed by said cooperage company, as principal, and Aaron T. Vail, William H. Niblick and John W. Vail, as sureties. The judgment of the circuit court was affirmed by the Appellate Court, and the cause was thereupon appealed to this court, which likewise affirmed it. After the affirmance of said judgment by the Supreme Court, execution was issued against the cooperage company, but returned unsatisfied, said company having become insolvent. On November 8, 1906, said William H. Niblick died intestate in Adams county, and thereafter his widow, Christina R. Niblick, was appointed by the Adams Circuit Court as administratrix of his estate. On October 8, 1907, appellee commenced this action by filing in the office of the clerk of the Adams circuit court, his claim against said estate of William H. Niblick. The claim was founded on said appeal bond, and alleged a breach thereof, and demanded an allowance of $ 8,500. The administratrix did not allow the claim, and it was thereupon transferred to the issue docket of said Adams Circuit Court for trial. Afterwards appellee asked and was granted leave to file a second paragraph of complaint, making said Aaron T Vail, John W. Vail and the Fort Wayne Cooperage Company new parties defendant, for whom process was issued. Said Aaron T Vail and John W. Vail entered a special appearance and filed motions to quash the summons, which motions were sustained. Thereupon the administratrix filed her petition, in which she represented that the bond sued on was executed by said cooperage company, as principal, and Aaron T. Vail and John W. Vail and her decedent, as sureties, and she prayed that the claim be amended, and the cooperage company and the Vails be made parties defendant thereto. This petition was granted and the court ordered plaintiff to amend his claim making the company and said Vails defendants, which was thereupon done and on motion of plaintiff the court ordered the issuance and service of process on the new defendants. After the service of new process, various motions were made by defendants, and the venue of the cause was changed to the Wells Circuit Court. On May 15, 1909, the cause was at issue, and was tried by the court without a jury. On September 23, 1909, judgment was rendered by the Wells Circuit Court in favor of appellee, against the cooperage company as principal, and Christina R. Niblick, as administratrix of the estate of William H. Niblick, and Aaron T. Vail and John W. Vail, as sureties, in the sum of $ 8,198.79 and costs. From that judgment this appeal is prosecuted. During the progress of the cause Christina R. Niblick and Jesse G. Niblick were made parties defendant. All of said defendants are named in this appeal as appellants, but Aaron T. Vail alone has assigned errors.
March 2, 1910, the transcript was filed in the office of the clerk of this court. The cause was submitted April 1, 1910, and on May 20 appellant's brief was filed. On June 27 appellee filed his motion to dismiss the appeal, and at the same time filed his brief on the merits. On August 8 said appellant filed his reply brief on the merits and his brief on appellee's motion to dismiss the appeal.
Appellee's motion to dismiss, among other causes, is based on the failure of appellant to file the transcript within the time required by § 2978 Burns 1908, Acts 1899 p. 397. As the transcript was not filed until after the lapse of more than one hundred days from the date of the judgment, and as no bond was ever filed, it becomes necessary to decide whether this appeal is governed by the provisions of the civil code ( § 672 Burns 1908, § 633 R. S. 1881), or by §§ 2977, 2978 Burns 1908, § 2454 R. S. 1881, Acts 1899 p. 397.
Said § 2977 provides that "any person considering himself aggrieved by any decision of a circuit court, * * * growing out of any matter connected with a decedent's estate, may prosecute an appeal to the Supreme Court, upon filing, with the clerk of the circuit court, a bond," etc. Said § 2978 provides that
Does the judgment appealed from grow out of "any matter connected with a decedent's estate"? If so, this appeal should be dismissed.
Since the decision in the case of Seward v. Clark (1879), 67 Ind. 289, overruling the case of Hamlyn v. Nesbit (1871), 37 Ind. 284, it has been held in an unbroken line of decisions that if the decision grows out of any matter connected with a decedent's estate, it is necessary to comply with the provisions of § 2978, supra, or provisions of like character in earlier statutes, and that this remedy is exclusive. Bell v. Mousset (1880), 71 Ind. 347; Yearley v. Sharp (1884), 96 Ind. 469; Browning v. McCracken (1884), 97 Ind. 279; Miller v. Carmichael (1884), 98 Ind. 236; Bennett v. Bennett (1885), 102 Ind. 86, 1 N.E. 199; Rinehart v. Vail (1885), 103 Ind. 159, 2 N.E. 330; Webb v. Simpson (1886), 105 Ind. 327, 4 N.E. 900; Galentine v. Wood (1894), 137 Ind. 532, 35 N.E. 901; Beatty v. Voris (1894), 138 Ind. 265, 37 N.E. 785; Harrison Nat. Bank v. Culbertson (1897), 147 Ind. 611, 45 N.E. 657; Chipman v. Wells (1904), 34 Ind.App. 1, 72 N.E. 172.
While this court has suggested in many of said cases that the object of the General Assembly in said enactments was to hasten the settlement of decedents' estates, it appears to be settled that the test applied in the determination of the question is, whether or not the probate jurisdiction of the trial court was involved.
In the case of Koons v. Mellett (1890), 121 Ind 585, 7 L. R. A. 231, 23 N.E. 95, this court said: "The rule to be deduced from the decisions upon the subject is...
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