Tharp v. Barnett

Wood, J., (after stating the facts.) Appeals are taken from the probate court under the following statute: “Appeals may be taken to the circuit court from all final orders and judgments of the probate court at any time within twelve months after the rendition thereof by the party aggrieved filing an affidavit and prayer for appeal with the clerk of the probate court, and upon the filing of such affidavit the court shall order an appeal.” Sec. 1348, Kirby’s Digest. Under this statute, the circuit court was without jurisdiction; for the probate court made the order granting the appeal before any affidavit was filed. This was premature. The order recites that “the appeal is granted upon the filing of the prayer for appeal and bond required by law.” There is no order of the court granting the appeal after the affidavit was filed. The filing of the affidavit is a prerequisite to the granting of the appeal by the probate court, and the affidavit must be filed before the order granting the appeal is made. The statute contemplates that the court rendering the judgment shall pass upon the affidavit and make the order granting the appeal. The clerk of the court has no such power. The court could make no final order granting the appeal until the affidavit and prayer for appeal was filed. “The court shall order an appeal upon the filing of such affidavit.” The language of the statute indicates that the prayer for appeal shall be included in the affidavit. At any rate, the affidavit and prayer both must precede the order granting the appeal. The law is analogous to that governing the procedure in appeals from justice to circuit courts and from circuit courts to this court under similtr statutes. See the following cases: Matthews v. Lane, 65 Ark. 419; Merrill v. Manees, 19 Ark. 647; Hanna v. Pitman, 25 Ark. 275; Crow v. Hardage, 24 Ark. 282; Bank of State v. Hinchcliffe, 4 Ark. 444; Moss v. Ashbrooks, 15 Ark. 169; Johnson v. Hodges, 24 Ark. 597; Johnson v. Duval, 27 Ark. 599; Walker v. Noll, 92 Ark. 148. These cases show that the judgment of the circuit court dismissing' the appeal is correct. But, the circuit court being without jurisdiction, it was error to render judgment for costs of the proceeding. Neal v. Peay, 21 Ark. 94; Derton v. Boyd, 21 Ark. 265-8; McKee v. Murphy, 1 Ark. 55, 58; Morrow v. Walker, 10 Ark. 569. The judgment is therefore affirmed as to dismissal of appeal and reversed as to the costs.