Henkel v. Indiana National Bank

Dausman, J. (after making the foregoing statement). The legislature has provided that a litigant who is aggrieved by a final judgment of a trial court may have his cause reviewed on appeal by complying with certain requirements. Statutes which prescribe the terms and condition on which an appeal may be taken must be strictly pursued. The requirements of statutes of that kind are jurisdictional; and unless there has been a strict compliance therewith, the appellate tribunal is without power to hear and determine the merits of the controversy. In the case at bar, it would be much easier to write an opinion on the merits of the controversy presented by the assignment of errors than on the question presented by the motion to dismiss the appeal. But the jurisdictional question must first be determined. It is clear that the purpose of the action is to declare the existence of a trust, to preserve the trust fund, and to secure the application of the fund to the purposes for which it was created. It is equally clear that, prima facie, the fund involved did not constitute assets of the estate. Saltzgaber had arranged with the insurance company to have the fund paid to Randall, in the capacity of trustee, and that the fund should be applied on the indebtedness due from the insured to certain creditors. That arrangement was contractual — as between Saltzgaber and the insurance company. On the death of Saltzgaber, Randall refused to serve as trustee pursuant to the appointment made by Saltzgaber. Henkel and Randall were appointed co-administrators of Saltzgaber’s estate, and the life insurance company paid to them the proceeds of the policies under an agreement that the fund should be held by them sepa *414 rate- and apart from the funds of the estate, for the use and benefit of the persons who should be found by judicial decree to be lawfully entitled thereto. It is obvious that primarily the fund did not constitute assets of the estate and that the administrators could not have arbitrarily included it in their inventory without violating the condition on which it was paid. It is apparent on the face of the record that the defendants so understood the matter and that they were seeking to have the fund declared assets of the estate by judicial decree. It should be. observed that the court in which this cause was tried is denominated in the statute “a probate court.” §1753 et seq. Burns 1926, §1606 et seq. Burns 1914. It is a court of more comprehensive jurisdiction than the name primarily implies. Bouvier’s Law Die. It has exclusive original jurisdiction in all matters pertaining to the appointment of trustees and to the settlement of trusts. It has concurrent jurisdiction of “All actions by and against executors, administrators, guardians, assignees and trustees.” The legislative provision is that an appeal may be taken from that court in any case wherein an appeal may be taken from a circuit court. The manner of taking and perfecting an appeal is stated in the following language: “The appeal shall be regulated by the law regulating appeals from the circuit court to the Appellate and Supreme Courts, so far as applicable. An appeal may also be taken to the Appellate and Supreme Courts in the same manner and in like cases as from circuit courts, or the judge thereof.” §1797 Burns 1926, §1625 Burns 1914. Surely this statutory provision is not to be commended for its diction. However, reflection and reason reveal the legislative intent to be simply that appeals may be taken from the probate court on the same terms and condition as appeals in like *415 cases are taken from a circuit court. For many years, two distinct methods of perfecting appeals from a circuit court, in cases other than criminal, have been maintained. The distinction is based on the nature of the subject-matter involved. The classification is as follows: (1) Matters within the act providing for the settlement of decedents’ estates; and (2) actions within the Civil Code. For many years, the legislature has also maintained a comprehensive plan for the settlement of decedents’ estates. Ch. 6 R. S. 1881, ch. 6 Burns 1914, ch. 6 Burns 1926. The following is one of the provisions of that plan: “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 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.” §3310 Burns 1926, §2977 Burns 1914, §2454 R. S. 1881, 2 R. S. 1852 p. 291. The act of 1881 consists of 242 sections, numbered consecutively. For the convenience of the public, presumably, the act is subdivided into nineteen parts, called articles. The section above quoted is numbered 228 and is the first section of Art. 17. The title of the act is “An Act providing for the settlement and distribution of decedents’ estates.” Acts 1881 [Spec. Sess.] p. 423. *416 *415 Attention must now be directed to the following words of the statute: “any decision * * * grow *416 ing out of any matter connected with a decedent’s estate.” These words have been the prolific source of controversy. The appellate tribunals have been called upon many times to determine what cases are appealable under this statute; but the decisions on this point are not clear. It is another example of inapt expression. One thing, however, is certain— the scope of an act cannot be broader than its title. §122 Burns 1926, §115 Bums 1914. • It follows that matters within the scope of this act are appealable under the section above quoted; all other matters are excluded. The troublésome expression means simply “any matter within the purview of this act.” Another feature deserves attention. The trial court fixed the amount of an appeal bond, to be executed jointly by all the defendants other than Henkel and Randall in the capacity of administrators, in the sum of $500. A bond in that sum was promptly filed, in which all the defendants joined except Henkel and Randall as administrators and Henkel and Randall as trustees. As' trustees, these two defendants have attempted to appeal wholly without bond. Now, the act governing the settlement of decedents’ estates requires an appeal bond “in double the sum in controversy in cases where an amount of money is involved.” That requirement is imperative. Did counsel for the defendants think when they filed a bond in the paltry sum of $500 that they were perfecting an appeal under this statute? However, if the sufficiency of the bond be wholly excluded from our consideration, it is none the less obvious that this case is not within the act for the settlement of decedents’ estates. That act prescribes a procedure which is distinctively and exclusively applicable to matters within its purview. Under its provisions, a claim against a decedent’s estate is not to be *417 presented by complaint and summons. A very different plan has been designated for that purpose. But it is idle to pursue this feature further. It is apparent on the face of the record that neither the trial court nor any of the parties was of the opinion that the case at bar is within the act for the settlement of decedents’ estates. Everybody concerned — the trial court and the litigants — treated' the proceeding as an action within the Civil Code; and in so doing they were justified. Has an appeal been perfected in accordance with the requirements of the Civil Code? The answer to that question depends on whether or not it was essential that notice be served on the plaintiffs. It has been held consistently that notice of an appeal is not required where a bond has been seasonably filed and approved by the trial court, and the transcript has been filed within the time fixed by statute. The statute now in force requires that the transcript be filed “within sixty days after filing the bond.” §698 Burns 1926, §679 Burns’ Supp. 1921. No extension of time within which to file the transcript was requested, and, of course, none was given. No notice of appeal was given and no attempt was made to perfect a “vacation appeal.” This feature, however, need not be pursued further; for the reason that none of the defendants are claiming that an appeal has been perfected in accordance with the requirements of the Civil Code. We adhere to our former ruling in dismissing the attempted appeal; and the petition for a rehearing is denied.