Sullivan v. Breen

Hr. Justice Dibell delivered the opinion of the court. This was a claim filed by J. O. Sullivan against an estate in the County Court. Claimant was defeated, and prayed an appeal to the Circuit Court.. The County Court allowed the appeal upon claimant filing a bond in the penal sum of $100 within twenty days, and directed that the bond be approved by the clerk of the court. Within that time claimant filed a bond and the clerk approved it. The proper papers were filed in the Circuit Court. The administrator entered a limited appearance and moved to dismiss the appeal for want of a proper approval of the appeal bond. Claimant had meantime died. His executors appeared and entered a cross-motion that the Circuit Court approve said appeal bond, which was denied, and another cross-motion for leave to file a new appeal bond, which was also denied. The court then dismissed the appeal. This is a writ of error to reverse that judgment. Section 68 of our statute concerning the administration of estates requires that in all cases of appeals from the allowance or rejection of claims by the County Court the security upon the appeal bond shall be approved by the county judge. The county judge could not delegate that power to the clerk. (Bowlesville M. & M. Co. v. Pulling, 89 Ill. 58; Fairbank v. Streetor, 142 Ill. 226; Witter v. Estate of Witter, 65 Ill. App. 335; Blood v. Harvey, 81 Ill. App. 187.) The Circuit Court therefore properly dismissed the appeal, unless it erred in denying one or the other of the cross-motions. We are of opinion one or the other of them should have been granted, if a proper showing was made. But there is no bill of exceptions in the record, and we can not know what showing was made for and against the cross-motions. It may have appeared to the Circuit Court that the security upon the bond filed in the County Court was insufficient. Upon the motion for leave to file a new appeal bond the proposed bond may have been presented, and its security may have been found insufficient. Some other sufficient reason may have appeared why neither of these motions should be granted. The action of the Circuit Court is presumed to be correct, and authorized by the showing made, until the contrary appears. (Blair v. Ray, 103 Ill. 615; City of Chicago v. Porter, 124 Ill. 589.) Moreover, there is nothing to show that claimant’s executors excepted to the rulings of the court in denying said cross-motions, and the correctness of said rulings is therefore not presented for our decision 'by this record. Assuming, as we must, that the cross-motions were properly denied, the dismissal of the appeal was proper. The motion entered here by appellee to expunge certain parts of the record, is denied. The judgment is affirmed.