Estate of Fehland , 49 Wis. 349 ( 1880 )

Lyost, J.

The statute requires that the appeal bond shall be executed to the adverse party (R. S. 1858, ch. 101, sec. 21; ch. 117, sec. 25); and the only question to be determined on this appeal is, whether the creditors of the estate who alone contested the appellant’s claim, and to whom the bond was executed, constitute the adverse party ” within the meaning of the statute. To determine who is the adverse party, for the purposes of an appeal from an order of the county court in probate, regard must always be had to the nature of the order and the special circumstances of the case. Had not the claimant been the administrator of the estate, the administrator would be the adverse party in an appeal from the disallowance of the claim. Being such administrator, had his claim been allowed he would be the adverse party in an appeal by any person aggrieved thereby, and the appeal bond would run to him in his individual capacity.

In Perkins v. Shadbolt, 44 Wis., 574, on appeal by an administratrix from an order of the county court made at the instance of certain creditors of the estate, it was held that the appeal bond properly ran in terms to tbe creditors of tbe estate. That ruling would probably sustain a like bond, bad one been given, on this appeal; but tbe case does not bold that in all appeals taken by administrators, affecting their individual interests, tbe appeal bond must be in that form.

None of tbe cases in this court are decisive of the question under consideration, and a satisfactory solution of it is somewhat difficult. Our own cases, however, illustrate the above remark that each case must be decided upon its own peculiar facts. They are also authority for disregarding merely technical defects for the purpose of sustaining the appeal.

Looking at this controversy as one in which Spiegelburg on the one hand, and the obligees named in the bond on the other, are the only actors; and considering (what is undoubtedly true) that if judgment for costs goes against the former in this or the circuit court, such costs belong to the latter; and considering further that the bond cannot run to the administrator because the obligor is himself the administrator, and that the heirs of the intestate have no interest in the controversy, because the estate is hopelessly insolvent,— it seems to us it ought to be held that the contesting creditors are “ the adverse party,” within the meaning of the statute, and hence that the bond is sufficient.

The question which we have been' required to determine will, doubtless, arise less frequently hereafter; for in the late revision an undertaking instead of a bond is to be given' on such appeals. R. S., 983, sec. 4032. Moreover, the county judge is required to designate “the adverse party” upon whom notice of the appeal must be served. Section 4033.

By the Court. — The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.