Cummings v. Hugh , 2 Vt. 578 ( 1830 )

These points were argued by counsel, and the opinion of the Court was pronounced by

Hutchinson, J.

There is no difficulty under the first exception, but what*results from stating the probate court to be holden the first day of July, without stating the continuance of the business, settling the administratrix’s account, &c. to the second. The first is truly stated ; the court was then holden ; and the record shows the continuance to the second, before the decree was complete. As a matter of description it was well to state the court to have been holden the first, as is done in this case. This would not be altered by the court’s continuing several days before the business assiged for the first day was finished. Then arises the question, when do the twenty days commence, within which any person must appeal ? The statute gives the twenty days from the making of such order or decree. Now there could be no appeal until the decree was complete ; and then, and not till then, do the twenty days begin to run. And this decree being completed the second, the appeal, claimed the twentieth day of July, was in season.

With regard to the second objection, the record says, “within twenty days but does not give the exact day. The necessary inference from this record is, that all there recorded was done under the date last mentioned, which, in this case, was an indefinite day within twenty days from the making and completing the' decree. But if the probate court, after a proper application for an appeal, took time to consider of the subject, or neglected to comP^ete aUowance of the appeal, and make the order of no-e,till the twenty days had expired,the party applying must not th^--by lose his rights. Indeed, such neglect might be the groundif a mandamus to compel the completion of the business, and tl; transmitting the appeal to the proper court. And, when it is com píete, it may be considered as done at the day when the applica* tion was made and the bond lodged. This exception is overruled.

John Mattocks, for the appellee. Cushman, for the appellant.

With' regard to the third objection, that no person appeared U object to the administratrix’s account, this was not necessary in order to entitle to an appeal. The twenty days are given for th« very purpose of entering an appeal by those who are not present, when the decree is made. The law supposes that many persons, at least, who are interested, will not be present, and saves their rights by giving this period;

The motion to dismiss is overruled;