Queen Ins. Co. of America v. Cotney , 25 Okla. 125 ( 1909 )

Under the law as it existed at the time of the organization of the state government, an appeal from the final judgment of a probate court, when questions of fact were to be retried, could be prosecuted to the district court of the county in the manner and form as appeals from the judgment of the justice of the peace. Section 1881 (chapter 22, art. 15, § 405) Wilson's Rev. Ann. St. 1903. Such an appeal is taken by the defendant, within 10 days from the rendition of the judgment, entering into an undertaking in favor of the adverse party, with at least one good and sufficient surety, to be approved by the probate judge, in a sum not less than double the amount of the judgment and costs, conditioned as required by the statute. Section 5045 (chapter 67, art. 10, § 118) Wilson's Rev. Ann. St. 1903. The appeal is taken upon the filing and approval of the undertaking as provided in the foregoing section, and it is not required that the transcript shall be filed with the district court within the 10 days. And when the same is taken in due time by entering into a bond, and the certificate of the probate judge or clerk as to the transcript filed in the district court is defective, the party appealing, upon making timely application for its correction, should be permitted to have the same made. Section 5046 (chapter 67, art. 10, § 119) Wilson's Rev. Ann. St. 1903; St. L. S. F. R. R. Co. v.Hurst, 52 Kan. 609, 35 P. 211; St. L., L. D. R. R. Co. v.Wilder, 17 Kan. (2d Ed.) 239; Bond v. White, 24 Kan. 45; Haasv. Lees, 18 Kan. 449; Struber v. Rohlfs, 36 Kan. 202, 12 P. 830; St. L., K. S.W. Ry. Co. v. Morse, 50 Kan. 99, 31 P. 676.

It is further insisted by the defendant in error that the appeal bond was defective in that it does not show to what court it was intended the appeal should be taken, and that the bond should have been in the penal sum of $1,113, instead of $1,100, and that the appeal was not prosecuted with diligence. The motion to dismiss was on the ground that "no proper transcript of the proceedings in said cause in the probate court of Comanche county, Oklahoma, wherein said cause was first tried, and from which court the same was appealed to this court, has been filed in this court, and that, by reason of the failure to file such transcript within the time allowed by law, this court has never acquired jurisdiction of said cause." The journal entry recited:

"* * * The plaintiffs, by their attorneys, presented their motion to dismiss the appeal in this case; and, the same having been read by the court, and it appearing to the court that the certification of the transcript herein filed is not in form as required by law, the court, being fully advised, is of the opinion that said motion is well taken. It is therefore in all things sustained."

The defendants in error will not be permitted to have the appeal dismissed by the lower court on one ground, and in this court to take a new hold and sustain the order of dismissal on another ground, unless it goes to show an entire want of jurisdiction of the district court. Harris v. First NationalBank of Bokchito, 21 Okla. 189, 95 P. 781; Ohio Miss. R. R.Co. v. McCarthy, 96 U.S. 258, 24 L. Ed. 693. And it is especially in this case, when the alleged additional defect was susceptible of being cured in the lower court by amendment. See section 5052 (chapter 67, art. 10, § 125) Wilson's Rev. Ann. St. 1903; St. L. S. F. R. R. Co. v. Hurst, supra; and C. K. W. R. Co. v. Abilene Town-Site Co., 42 Kan. 97, 21 P. 1112.

The judgment of the lower court is reversed, with instructions to set aside the order dismissing the appeal and to reinstate the case on the docket.

All the Justices concur.