Lusk v. Kershow

Chief Justice Hayt delivered the opinion of the court: . The first and second assignments of error have been argued together. These relate to the failure of the district court to dismiss the, appeal upon appellant’s motion. . The record shows that-on the 3d day of November, 1887, a final judgment was entered in the county court sitting for probate business, and until the 25th day of November was allowed, within which to file an appeal bond for the purpose of taking the case to the district court. Appellees contend: First, — That the manner of taking an appeal in this case is fixed by the general act providing for appeals from the county to the district court, and that the appeal must be dismissed under this statute as construed in. Hunt v. Arkell et al., 13 Colo., 543, because no notice of the' taking of the appeal was served as required.:. , Secondly, — That' if' the statutes in reference to appeals from judgments, of the county court, rendered in probate mat-: ters, is to govern, the appeal should be- 'dismissed, as it was not taken within ten days from the 'rendition of -judgment in-the county court.., , > [485] ■ In this state county courts have jurisdiction in certain criminal matters and, also, in all civil causes where the claim or demand does not exceed the sum of $2,000. In addition to this, such courts are given unlimited jurisdiction in the settlement of estates, the appointment of guardians, etc. . . Several provisions are to be found in the statutes.with reference to appeals from the judgments of the county courts in-civil actions, and it becomes nécessary to determine in this case what particular provision governs where the judgment is rendered by the court sitting for the transaction of probate business. By § 1085, Mills Ann. Stats., it is provided, “ Appeals may be taken to the district court of - the same county from all final judgments and decrees of , the county court, except judgments by confession, by any person aggrieved by any such final judgment or decree; * * * ” At the time this section was adopted there existed upon our statute books another provision which may now be found in § 1097 of Mills Ann. Stats.* - * * Appeals or writs of certiorari shall be (lie) to the district court of the same county in favor of any or more parties «gainst whom such question or questions have been decided, to be prosecuted by such person or persons in the same manner as appeals and writs of certiorari respectively, when prosecuted from decisions of justices of the peace.” , Was this statute in force at the time.of the praying and allowance of the appeal in this case ? It is contended that it was changed by the act of 1885. This act does not in terms repeal the former statute, nor is there anything in the latter act, which by implication must necessarily be taken as effecting this result. An examination of the act of 1885 shows conclusively that it relates exclusively tp appeals from judgments of the county court, rendered in the exercise of its ordinary civil jurisdiction. We are therefore of the opinion that at the time this appeal was taken, as at present, two methods of taking an appeal, at least, were provided for by our statutes. One relating to and fixing the procedure in appeals in ordinary civil cases; the other, prescribing the man [486] ner of perfecting appeals from judgments and orders entered in probate proceedings. As the judgment from which the present appeal was taken was entered'in the course of the administration of an estate, the latter statute must control the determination of the motion to dismiss the appeal. • It is contended that under this act the party praying the appeal must file the required bond within ten days from the rendition of the judgment from which the appeal is taken. This argument is based upon the statute requiring appeal bonds, in cases of appeals from judgments of justices of the peace, to be filed within ten days. It is said that this provision is mandatory and must govern the present appeal by reason of the language of § 1097, supra, providing that the appeal must be prosecuted in the same manner as appeals and writs of certiorari from decisions of justices of the peace. Of this provision it is to be observed that by its terms it does not require that appeals from the county court in probate matters can be taken only within the same time as appeals from decisions of justices of the peace. And in our opinion the county court is authorized in the exercise of a reasonable discretion to extend the time for filing the bond in an appeal of this kind. It is a court of general jurisdiction, and this jurisdiction is unlimited in the determination of matters growing out of the settlements of estates. It is given a wide discretion in many matters of grave, as well as those of minor importance, and no reason is perceived why its powers-should-be unreasonably circumscribed in regard to the mere matter of time within which an appeal bond may be filed. Authority to extend the time is necessary to the ends of justice in some cases, as is well illustrated by the case at bar. Here one of the parties, against whom judgment was rendered, was, at the time, without the state. He was defending simply in a representative capacity. It was necessary that he should sign this bond in order that the appeal might be perfected, and it sufficiently appears that his signature could not be procured within the time fixed by the statute in the absence of [487] an order of court extending the time without entailing upon the estate the unnecessary expense of bringing him to Colorado. The bond having been filed within the time fixed by the court the motion to dismiss was properly overruled. Another point which needs but a passing notice is the contention that under §2679, Mills Ann. Stats., the appellants failed to perfect the appeal, as they did not pay the fees necessary to have the case docketed and placed on the calendar of the appellate court. This provision of the statute, however, does not affect this case, as the amendment providing for the payment of costs especially provides that it should not affect — “ Actions pending at the time of the taking effect of this act, shall not be deemed as affected thereby.” This action was pending at the time of the adoption of such amendment, and consequently is expressly exempted from the operation of the amendment. The judgments of the district court denying the motions to dismiss the appeal were right and cannot be disturbed. In reference to the Lusk claim it is to be note.d that it was not originally a claim against the Kershow estate. It arose out of the settlement of the Fillmore estate at a period over nine years after the death of Fillmore. Whether it should properly be considered as a claim against that estate or only against the administratrix, it is not necessary to determine in this case. It is certain that if chargeable at all against the Kershow estate, it became such charge solely by reason of the contract bearing date June 8, 1882. In reference to such contracts Schouler in his work on Domestic Kelations, in the chapter entitled — “Acts Void and Voidable,” while admitting that the authorities are frequently in conflict as to what should be considered the voidable acts of an infant, and what should be held absolutely void in reference to contracts of the latter class, says:— * * * “ Certainly if any contract can be so pronounced on mere inspection it is a contract whereby an infant becomes bound upon another’s debt. “ Schouler, Domestic Kelations (2d ed.),” § 537. And it seems clear that the guardians of these minor [488] heirs were without authority to bind their ward's in the manner attempted by the agreement upon which this action is founded. And the fact that such agreement was permitted by the probate court without proof, does not change the rights of the parties thereto. Among the numerous authorities upon this point we cite the following: Hutchinson v. McLaughlin, 15 Colo. 492; Enos et al. v. Capps, 12 Ills. 255; Bennett v. Bradford, 132 Ill. 269; McEndree v. McEndree, 12 Ind. 97; Daniels Chan. Pl. Pr. (4th ed.) p. 169, et seq.; Bank of U. S. v. Ritchie, 8 Peters, 128; More v. Hillebrant, (Texas) 65 American Dec. 118 and notes. Appellants contend that the Kershow heirs received certain property under the agreement and still retain the same. Under these circumstances it is said that it would be contrary to equity and good conscience to allow them to repudiate the agreement. When heirs and others are held responsible at all for such demands it is upon the theory that they have received property from the deceased which in equity is subject to such demands. Schouler’s Ex. & Admin., 1st ed., § 445. Such is neither shown by the evidence to have been the case here nor is this an equitable action brought to subject specific property to the payment of such charges. It is a simple suit at law in which the plaintiff demands a personal judgment. Such judgment, if obtained, would • be enforceable against any of the property of the estate, whether the same came from the Fillmore estate or the Kershow estate; or has beea since accumulated. It seems clear that such an action cannot be maintained. The judgment of the district court will be affirmed. Affirmed.