Stamper v. Link

OPINION ON MOTION TO DISMISS This is an appeal from a judgment of the Marion Probate Court and involves a claim filed by the appellant against the estate of Adam W. Sherer, deceased. No appeal bond was filed within 30 days after the date of said judgment nor was the time for filing such bond extended by this court.

Section 6-2001, Burns' 1933, provides as follows:

"Any person considering himself aggrieved by any decision of a circuit court, or judge thereof in vacation, growing out of any matter connected with a decedent's estate may prosecute an appeal to the Supreme Court, upon filing with the clerk of such circuit court a bond with penalty in double the sum in controversy, in cases where an amount of money is involved, or where there is none, in a reasonable sum, to be designated by such clerk, with sufficient surety, payable to the opposite party in such appeal, conditioned for the diligent prosecution of such appeal, for the payment of the judgment which may be affirmed, and all costs if costs be adjudged against the appellant."

Section 6-2002, Burns' 1933, reads thus: "Such appeal bond shall be filed within thirty (30) days after the decision complained of is made, unless, for good cause shown, the court to which the appeal is prayed shall direct such appeal to be granted, on the filing of such bond within one hundred and eighty (180) days after such decision. But any person who is aggrieved, desiring such appeal, may take the same in his own name without joining any other person. The transcript shall be filed in the Supreme Court within ninety (90) days after filing the appeal bond."

The appellee asks us to dismiss this appeal for failure to comply with the requirements of the above statutes which, he contends, control all appeals "growing out of any matter 1, 2. connected with a decedent's estate." Such was the law prior to September 6, 1943, the effective date of the 1943 Revision of the Rules. Since September 6, 1943, Rule 2 of the 1943 Revision has governed and now governs all appeals of whatever nature to the Supreme and Appellate Courts and abrogates all general and special statutes in so far as they pertain to purely procedural matters. In that respect the statutes are saved only as to the time allowed for perfecting the appeal in the event less time is given by the statute than is allowed by the rule. Bonds, as conditions precedent to an effective appeal, are dispensed with and become necessary only if the appellant desires to suspend the operation of the judgment from which the appeal is taken.

In the matter before us the procedure specified by Rule 2 3. has been followed in so far as is necessary to vest jurisdiction in this court and the appellee's motion to dismiss is overruled.

NOTE. — Reported in 66 N.E.2d 326.