Barrett v. Johnson , 4 Kan. 327 ( 1868 )

By the Court,

Kingman, C. J.

This is a proceeding in error to reverse a judgment of the district court of Jefferson county, dismissing an appeal taken by plaintiff in error to that court, from an order of the probate court, making distribution of the estate of George Barrett, deceased.

The order of the probate court appealed from was made on the 5th day of February, 1867. At that time no appeals were allowable from the probate court. Renter v. Bauer, 3 Kans., 503.

Subsequently a law was passed, and became in force, by publication, on the 7th day of March, 1867, allowing appeals from the probate court in this class of cases. This law granting appeals is not retroactive in its terms, nor can it be construed to be so, in fact, without doing violence as well to its language as to the rule that laws will not be given a retroactive effect unless the terms thereof are unmistakably intended to have that effect.

Sec. 2 of that act shows the contrary by making it necessary that the appeal should be taken at the term, or within ten days of the time of making such decision.

A compliance with this requirement would be impossible in most cases that had been previously tried, as it would be in this case, more than a month having elapsed after the decision before there was any law authorizing appeals.

The steps taken to obtain an appeal were unauthorized by law, and void. The appeal was, therefore, properly dismissed.

All the justices concurring.