Dunaway v. Campbell , 59 Ill. App. 665 ( 1895 )

Mr. Justice Green

delivered the opinion of the Court.

Two reasons were assigned in support of the motion to dismiss the appeal. “ First, the said appellants have improperly joined in such appeal, and- have not, as they should have done, taken or perfected separate appeals.” “ Second, the said Samuel W. Dunaway and Frank Brown were not, nor was either of them, at the date of taking or perfecting ' the said appeal, or at the date of filing their said exceptions, the administrator or administrators of the estaté of said Samuel Dunaway, Sr., deceased, or legally entitled to sue or prosecute suit or suits in that capacity or right, and were not, nor was either of them, legally entitled to prosecute any proceeding in this behalf, or in any other capacity or right.” The second reason is predicated upon the action of the Circuit Court of Williamson .County approving the final report of and discharging said Dunaway and Brown as administrators of the estate of Samuel Dunaway, Sr., deceased, on July 10, 1893. To determine this question we must give construction to Sec. 112, Chap. 3, Starr & Curtis’ Eev. Stat. This section requiring administrators to exhibit accounts of their administration for settlement in the County Court from time to time, adds : “Until the duties of their administration are fully completed.” It is shown in this record that claims filed on behalf of the estates of Dunaway and Eussell had been allowed against the Campbell estate, which claims had been paid in part only, and undistributed assets liable to the payment thereof yet remained in the hands of defendants in error, as administrators of said Campbell estate. Hence the duty devolved on plaintiffs in error to subject such undistributed assets to the payment of said judgments and the entry of said order of discharge did not deprive the administrators of the Dunaway estate of the power to do so. The duties of their administration would not otherwise be fully completed.

The County Court has no legal authority to discharge an administrator before the estate is completely settled, and if it does the order will be a nullity. Blanchard v. Williamson, 70 Ill. 560; Diversey v. Johnson, 93 Ill. 558, 559. And in Union Bank v. Doane, 140 Ill. 198, in speaking of the order of a County Court for the distribution of the proceeds of an insolvent estate, before the expiration of the three months provided in the act, the court held such order to be a nullity, and say: “ An order of this character is not unlike an order of a Probate Court for a final settlement of the estate of a deceased person before the estate has been administered according to law, Avhich this court has held to be a nullity.” Am. Law of Adm'rs, Woerner, 571. The contention of defendants in error that this order of discharge did not relieve the administrators from liability to respond to creditors for negligence or mismanagement, but that they were thereby deprived of the power to complete their duties of collecting or attempting to collect these uncollected judgments, for the benefit of creditors or distributees of said estate, amounts to this: That this order is a nullity only so far as relieving from liability is concerned, and is not a nullity, but operative, to prevent the administrators from taking proper legal steps to complete their official duties, and thus absolve themselves from liability. Such contention is in conflict with the decisions of our Supreme Court and can not be sustained. The first reason assigned in the motion to dismiss is, as before stated, that appellants have improperly joined in such appeal, and have not, as they should have done, taken or perfected separate appeals. The relief asked for by the petition was joint and several. It was filed for the purpose of compelling defendants in error to report fully and correctly all the assets of their intestate’s estate yet unreported, and thereby enlarge the fund out of which claims allowed could be paid. The separate claims of the two estates mentioned in the petition had been adjudicated, and the amount of each had been finally fixed by the judgments stated therein. These judgments were not assailed or challenged, and the only question involved in the proceeding was one in which the plaintiffs in error were necessarily jointly interested. We infer from the language of the order granting the appeal, this was the view taken by the Probate Court. It is therein recited that plaintiffs in error pray an appeal, which appeal is allowed, that is, a joint appeal. The condition is, that said appellants do file a bond, not separate bonds, and the language “in the penal sum of $200 each,” may just as fairly be held to mean that each of plaintiffs in error appealing, join in a bond incurring a several liability for that sum for breach of condition, as to hold the word “ bond ” should be made to read “ separate bonds.”

Counsel for defendants in error have themselves, in their brief, asserted it to be the law that where several parties pray a joint appeal, all must join in executing the appeal bond, or the appeal will be dismissed in the Appellate Court, and cite authorities supporting that contention. This appeal is a joint appeal. As such it was prayed for and granted, and all the parties appealing appeared in the Circuit Court to prosecute it as a joint appeal. Hence, if the rule of law above mentioned applies, separate bonds ought not to have been filed and the appeal ought not to have been dismissed, for the reason they were not filed. The view we have taken of this case dispenses with the necessity of considering or passing upon the cross-motions filed September 23, 1893, for leave to file separate appeal bonds, and the only question remaining is, did the trial court err in sustaining the motion of defendants in error and dismissing the appeal, and in overruling the motion of plaintiffs in error for leave to file an amended and sufficient bond, as an appeal bond, in the case %

This appeal is not of that class of appeals provided for in actions of forcible entry and detainer, and trial of the rights of property, in which the statute fixes and limits the time for perfecting appeals, but the court granting the appeal in this case had a discretionary power to fix the time for filing bond, and the amount and conditions thereof, and an improvident exercise of that discretion may be reviewed and error assigned therefor. In Zuckerman v. Hawse, 146 Ill. 63, an appeal had been dismissed for insufficiency of bond, on motion of appellee, and appellant asked for time to file a sufficient bond, which the. court refused to grant. It is said appellant submitted a bond he doubtless supposed was sufficient, and was attempting in good faith to comply with the order of the court; that it was the duty of the court to grant his request. The length of time to be given was of course to be fixed by the court, but an absolute refusal so to do was an abuse of discretion which resulted in wrongfully depriving appellant of the benefit of his appeal. In Horner et al. v. Coe, 64 Ill. 178, which was an appeal from the County Court, dismissed for insufficiency of appeal bond, and an exception to the order of dismissal, the court held such appellant was entitled to the benefit of the provision in case of appeals from judgments in justice’s court; that he should in no wise be prejudiced by reason of the insufficiency of the appeal bond, provided he would, in a reasonable time, to be fixed by the court, execute and file a good and sufficient bond, and that the appeal should not have been dismissed except on failure to file a good and sufficient bond within the time fixed by the court. The same rule with respect to rights of appellants in appeals from Probate Courts is held in Frizell v. Rogers, 82 Ill. 109. Appellees concede this to be the law, but say before an appellant can amend an appeal bond he must have a standing in court; that Dunaway and Brown had no right to litigate this matter and therefore no right to appeal. We have already held adversely to this contention.

As to Goodall, it is said he made no attempt to comply with the order of the court within the twenty days, and no leave to file separate appeal bonds was asked until September 23, 1893. Doubtless the law is that the order should be complied with, subject to the rule above mentioned, that if appellants in good faith attempted to comply with such order by filing an appeal bond within the time, and a motion to dismiss appeal for insufficiency of bond, or because it was not such a bond as the order contemplated, leave should be given, on cross-motion, to amend bond, or file sufficient bond, and the motion to dismiss be overruled. The record discloses such attempt in good faith by appellants to comply with the order, by filing in apt time a bond intended as a joint bond, and such a bond as they doubtless believed was required by the order, and no objection thereto was made known to them until several terms of the Circuit Court had elapsed, when the motion to dismiss was filed, and defendants in error at once entered said cross-motion. The appeal bond was defective, in form at least, but the executing and filing it within the twenty days fixed by the order, was an honest attempt to comply therewith, and brought the plaintiffs in error within operation of the rule announced in the cases cited and entitled them to the benefits of its application in support of their cross-motion. In our judgment the court erred in overruling the same and in dismissing the appeal.

The judgment is reversed and the cause is remanded, with directions to the Circuit Court to grant leave to plaintiffs in error to file an amended and sufficient appeal bond, within a reasonable time, to be fixed by the court. Reversed and remanded.