Cilley v. Flanders' Estate

The opinion of the court was delivered by Tart, J. This was a petition under N. L. s. 1126 to enter an ■appeal from the decision of commissioners. The time limited for taking the appeal expired in April or May, 1885. The petition was preferred to the December term of the County Court, 1887, five terms intervening between the alleged fraud, accident •or mistake and the bringing of the petition. Therefore the petition cannot be sustained, for N. L. s. 1127 provides that it must be preferred at the first or second stated term of the court to which it is preferred, after the fraud, accident or mistake happened. Fraud, accident or mistake cannot happen after the time for taking an appeal has expired which can operate to prevent the taking of one. The fact that the petitioner did not discover the fraud, accident or mistake until the time for preferring his petition has expired does not aid him. The statute is imperative ; the peti. tion must be preferred at the first or second stated term after the fraud, accident or mistake happens, not after the time when they are discovered. Whether the facts alleged in the petition presented a case within the statute, which was the only question passed upon in the court below, was a strict question of law, and is reversable in this court. Judgment reversed, petition dismissed with costs. Ross, J., having heard the demurrer to the original petition, did not sit.