Himes v. Sharp , 123 Ark. 61 ( 1916 )

"Wood, J.,

(after stating the facts). The court erred in dismissing the appeal. The statute provides: “Any person interested as heir, legatee or creditor may file exceptions to such account, or any item thereof, on or before the second day of the term of said court to which such account may be continued; and, if exceptions are not filed within the time specified, such account shall be examined and confirmed as hereinbefore provided, and such account when confirmed shall never thereafter be subject to investigation, unless in a court of chancery,” etc. Kirby’s Digest, section 140.

(1-2) When exceptions are once filed under this statute, unless they have afterwards been withdrawn by the party making them, it is the duty of the court to consider them as continuing so long as the account current is before the court for 'Confirmation. A party filing exceptions under the statute to the account of the administrator does not have to repeat such exceptions at each term of the court, to which the cause may be continued, and until final confirmation the same exceptions to the account as a whole or to any item thereof do not have to be made more than once.

(3) The order of the probate court sustaining certain exceptions and dismissing others at the term of the court previous to the term at which the account was finally passed on and confirmed was not a final judgment, so far as these exceptions were concerned. The order of the court continuing the consideration of the account current for restatement necessarily carried over the consideration of the exceptions that had been made to it when such account, at a subsequent term, came up for consideration and confirmation or rejection.

(4) It is manifest that a party filing, an exception could not appeal from the order of the court dismissing such exception until the final judgment was rendered, confirming or rejecting the account current. The court therefore erred in finding that there were no exceptions to the restated account current in the prohate court. The court also erred in finding that there was no affidavit nor prayer for appeal from the judgment of the probate court confirming the account current. It appears that this judgment was rendered on the 16th day of December, 1914, and it is recited in the judgment rendered on that day that “the attorney for the heirs at the .time excepted to the approval of said account current and prayed an appeal to the circuit court of the Southern District of Sharp 'County, which is granted.” It also appears that on tire same day Thomas I, Herrn, attorney for the heirs, filed a motion and an affidavit praying for an appeal “from the order and judgment of this court made on the 18th of September, 1914, in refusing and disallowing their exceptions to account current No. 1. ” And the affidavit stated that they “verily believe they are aggrieved by said order and judgment.” True this motion and affidavit and the order granting the appeal preceded on the record the entry of the final order and judgment on the account, but that could make no difference. The orders were made on the same day, and it would be highly technical and putting form before substance to say that these record entries, when considered together, were not a. sufficient compliance with the law to perfect appellant’s appeal, and to entitle them to have the same heard in the circuit court. The appeal being perfected in the circuit court, and the appellant having filed his exceptions in the probate court as required within the time provided by the statute, could renew these exceptions or amend the exceptions already filed in the circuit court.

The court found that no bond for costs was filed as required by Act No. 327 of the acts of the Legislature of the State of Arkansas of 1909. Under section 1348 of Kirby’s Digest, as amended by Act No. 327, supra, and sections 1349 and 1350 of Kirby’s Digest, a bond is not required as a prerequisite to an appeal except in cases where the appellant desires a supersedeas.

The judgment is therefore reversed, and the cause remanded with directions to reinstate the appeal.

Kirby, J., dissents.