Yearley v. Sharp

• Decision Date: 26 June 1884
• Docket Number: 11,453
• Citation: 96 Ind. 469
• Parties: Yearley, Administrator, v. Sharp, Administrator
• Court: Indiana Supreme Court

96 Ind. 469

Yearley, Administrator, v. Sharp, Administrator

No. 11,453

Supreme Court of Indiana

June 26, 1884

From the Delaware Circuit Court.

The appeal is dismissed, with costs.

J. R McMahan, for appellant.

W Brotherton and C. E. Shipley, for appelle.

OPINION

Howk J.

This was a claim filed by the appellant, Yearley, as administrator de bonis non of the estate of Henry B. Trout deceased, against the estate of Washington Trout, deceased, of which latter estate the appellee Sharp is administrator. The cause was put at issue and tried by the court, and, at the request of the appellant, the court made a special finding of facts and stated its conclusions of law thereon in favor of the appellee, the defendant below. The court rendered judgment in favor of the appellee and against the appellant on the first day of February, 1883, for the costs of suit. On the last day of January, 1884, the appellant filed a certified transcript of the proceedings and judgment in this cause, with his assignment of errors endorsed thereon, as and for an appeal therefrom, in the clerk's office of this court.

The appellee has moved this court in writing to dismiss the appeal in this case, for the following causes:

"1. The appeal was not taken in the time nor in the manner prescribed by law;

"2. The appeal was not taken in the time nor in the manner prescribed by sections 2454 to 2457, R. S. 1881; and,

"3. The decision and judgment from which said appeal was taken was rendered in the Delaware Circuit Court on February 1st, 1883, and the transcript was not filed in this court until January 31st, 1884, nor was summons from this court issued nor served upon appellee until after the expiration of the year following the date of the judgment, nor was time granted by this court to extend the period for taking such appeal beyond the twenty days allowed by law."

It will be observed from our statement of this case that the parties on both sides, plaintiff as well as defendant, were the administrators respectively of a decedent's estate. Unquestionably, therefore, an appeal from the decision of the trial court could be taken by the party aggrieved thereby only in the manner and within the time prescribed in sections 2454 to 2457, R. S. 1881. Section 2454 provides, in substance, that any person considering himself aggrieved by any decision of a circuit court, or judge thereof in vacation, 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 such circuit court a bond with penalty and surety, and payable and conditioned as therein required. In section 2457 it is provided, substantially, that where, as in this case, an appeal is taken by an administrator, he need not file an appeal bond. Section 2455 provides as follows: ...