Beakley v. Cunningham

Kirby, J., (after stating the facts). (1) The statute provides, section 1348, Kirby’s Digest: “Appeals may be taken to the circuit court from all final orders and judgments of the probate court at any time within twelve months after the rendition thereof by the party aggrieved filing an affidavit and prayer for appeal with the clerk of the probate court, and upon the filing of such affidavit, the court shall order an appeal at the term at which such judgment or order shall be rendered, or at any term held within twelve months thereof. ’ ’ The statute clearly authorizes the appeal to be taken at any time within twelve months after the rendition of the judgment appealed from, and provides that upon the filing of the affidavit prescribed, the court shall order an appeal at the term at which the judgment or order was rendered, if the affidavit was then filed, or at any term within twelve months thereof. This last expression does not have effect to extend the time for taking the appeal beyond twelve months from the rendition of the judgment, although it permits the order to be made at any subsequent term of court, provided it is made within said twelve months after the rendition of the judgment. (2) The order not having been made granting the appeal until more than twelve months after the rendition of the judgment, it was properly dismissed. (3) The statute provides, section 3828, Kirby’s Digest: “Guardians and curators shall receive such compensation for their services as the court shall decide to be just 'and reasonable. ’ ’ The probate court found that the guardian’s conduct of the management of the estate of his wards was such as to require his removal, and removed him. The record shows that he had not filed 'an inventory of the estate; that he did not file separate accounts with each of his wards; that he failed to file an account for 1912; permitted the lands of his wards to sell for taxes, necessitating of course, their redemption from such sale for their protection, ’and that he also failed to pay a certain allowance ¡made by the court for the support of the minors. There is no showing made of any .service rendered that would entitle him to further compensation and both the probate .and circuit court, having found he was entitled only to commissions upon the amounts paid out by 'him as guardian, and not upon the .amount paid over upon final settlement .after his removal, the judgment will be affirmed. Stanley v. Deihough, 50 Ark. 201. It is so ordered.