Jones v. Piggott

Ames, C.

This is a petition in error to review a proceeding evidently intended as an appeal from an order of a county court settling the accounts of an administrator. In tbe .district court it was objected by tbe appellee tbe administrator that that court bad not obtained and could not acquire jurisdiction over tbe supposed appeal, and that it bad no jurisdiction of tbe subject matter, and tbe court was asked to dismiss tbe proceeding. We think that, upon tbe record before us, tbe motion should have been granted^ or, rather, that it was tbe duty of tbe court of its own motion to refuse to retain tbe proceeding.

Section 42 of chapter 20 of the Compiled Statutes (Annotated Statutes, 4823) enacts that “In all matters of probate jurisdiction, appeals shall be allowed from any final order, judgment, or decree of tbe county court to the district court by any person against whom any such order, judgment, or decree may be made or who may be affected thereby.”

Section 48: “All appeals shall be'taken within thirty days after the decision complained of is made.”

Section 44 provides for giving a bond upon appeal in all cases in which the appellant is not an executor, ad-. ministrator or guardian.

Section 45: “After such bond has been filed, the appeal shall be granted,” etc.

Section 46: “When such appeal is taken, the county court shall, on payment of his fees therefor, transmit to the clerk of the district court within ten days after perfecting such appeal, a certified transcript of the record and proceedings relative to the matter appealed from.”

Section 47: “Upon the filing of such transcript in thdistrict court, that court shall be possessed of the action, and shall proceed to hear, try, and determine the same,” etc.

It is quite evident from the foregoing that the district court does not obtain possession or jurisdiction of such an appeal unless within forty days from the date of the order appealed from a transcript thereof, and of the proceedings relative to it in the county court, is filed with the district court clerk, nor unless within thirty days from the date of the order the bond required has been executed and filed. We do not find in the record before us anything purporting to he such a transcript, nor any evidence when, or that ever, any such order was made or bond given. So far as appears, therefore, the proceeding in the district court was without jurisdiction, and it is recommended that the judgment of the district court be vacated and set aside, and the proceeding dismissed.

Dtjffie and Albert, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be vacated and set aside and the proceeding dismissed.

Judgment vacated.