Rinehart v. Vail

Mitchell, C. J. This was a proceeding commenced in the Dearborn Circuit Court by the petition of Benjamin F. Yail, administrator, for the sale of the real estate of Sarah A. Yail, deceased, to pay the debts of the decedent. The lands for the sale of which the administrator petitioned were situate in Pulaski county, Indiana. The heirs at law and others, including the appellants, were made defendants. The petition was heard and determined in the Dear-born Circuit Court, that being the court having the administration of the estate in charge. The appellants demurred to the petition, and after the de [160] murrer was overruled, they answered in abatement. Demurrers were sustained to the answers in abatement, after which, upon issue made by denial, there was a hearing, which resulted in an order for the sale of the land according to the prayer of the petition. From this order this appeal is prosecuted. The appellee interposes a motion to dismiss the appeal, alleging as cause, that it was not taken in the manner and within the time prescribed by sections 2454 and 2455, R. S. 1881. The order appealed from was given September 6th, 1883. The appeal was taken by filing a transcript in the office of the clerk of this court September 1st, 1884. No bond has been filed, and the appeal seems to have been taken upon the assumption that it was governed by the rules regulating appeals in common law cases under the civil code. The appellee, without joining in error or agreeing to a submission of the cause, or in any other manner waiving a compliance with the statute regulating appeals, in matters connected with decedents’ estates, insists upon his motion to dismiss. Section 2454 provides that “Any person considering himself aggrieved by any decision * * * growing out of any matter connected with a decedent’s estate, may prosecute an appeal to the Supreme Court, upon filing, with the clerk of such circuit court, a bond with penalty in double the sum in controversy, in cases where an amount of money is involved (or where there is none, in a reasonable sum, to be designated by such clerk),” etc. Section 2455 enacts that “ Such appeal bond shall be filed within ten days after the decision complained of is made, unless, for good cause shown, the court to which such appeal is prayed shall direct such appeal ■ to be granted on the filing of such bond within one year after such decision. * * * The transcript shall be filed in the Supreme Court within ten days after filing the bond.” That the decision from which the appeal was taken in this case was made in a proceeding growing out of a matter connected with a decedent’s estate, and that appeals in all such cases must be taken in conformity with the foregoing stat [161] utes, unless the requirements thereof are waived, must be taken as settled. Seward v. Clark, 67 Ind. 289; Bell v. Mousset, 71 Ind. 347; Hillenberg v. Bennett, 88 Ind. 540; Browning v. McCracken, 97 Ind. 279. Filed Sept. 26, 1885. The sale of real estate by an administrator is provided for and regulated exclusively by the act for the settlement of decedents’ estates. The civil code makes no provision for such proceedings, and they are not within the. ordinary common law jurisdiction of the circuit court. The proceeding must, therefore, be had, and the appeal taken, under the provisions of the statute for the settlement of decedents’ estates. Under the sections above quoted and the amendment contained in the acts of 1885 (Acts 1885, p. 194), an appeal bond must be filed—unless the appeal is taken by the administrator, when no bond is required—within ten days from the date of the decision, and the transcript must be filed within thirty days from the date of the filing of the bond, unless for good cause shown this court shall direct such appeal to be granted, on the filing of a bond, within one year. No bond having been filed either within the time prescribed or since, and no application having been made to this court to be permitted to file a bond, and perfect the appeal within a year, the sustaining of the motion to dismiss seems to follow inevitably. Motion sustained and appeal dismissed with costs.