Horner v. Goe

Mr. Justice Sheldon delivered the opinion of the Court: This is an appeal from an order of dismissal by the court below of an appeal taken to it from the county court from an order of allowance of certain claims against the estate of a deceased person. The bill of exceptions merely sets out the motion to dismiss, and the order of dismissal, without stating the grounds of the motion or of the dismissal; and it is urged that it must be presumed the court below decided correctly, unless the contrary appears, and that in this case the contrary does not appear. But it appeal’s that the appellant excepted to the order of dismissal, and the record shows an appeal bond. We can conceive of no other ground of the dismissal than the insufficiency of the appeal bond. Section 138 of Statute of Wills, Scates’Comp. 1215, allows appeals from all judgments and orders of the court of probate to the circuit court in favor of any person aggrieved, “as in any other cases”—that is, as in cases before justices of the peace. Section* 65 of the Justices of the Peace Act, Scates’ Comp. 709, declares that an appellant shall in no wise be prejudiced by reason of the insufficiency of the appeal bond, provided he will in a reasonable time, to be fixed by the court, execute and file a good and sufficient bond. This provision embraces the bond in question by virtue of the aforenamed section 138, and the appeal should not have been dismissed for insufficiency of the appeal bond, except on failure to file a good and sufficient bond, in a time fixed by the court. The record shows an erroneous ruling of the court. The judgment is reversed and the cause remanded. Judgment reversed.