Hunter v. Thurmon

Mr. Chief Justice Smith delivered the opinion of the court. A petition was filed in the court of probates of Holmes county against the appellant as the guardian of his late ward, Minerva Thurmon ; the object of which was to compel him to deliver to petitioner certain effects which were the property of the said ward. A decree was accordingly rendered against the appellant, who prayed and obtained an appeal, without having entered into an appeal bond; and for that reason, it is insisted, the cause should be dismissed. The appeal in this case was taken during term time. The twelfth section of the statute of 1821, Hutctu CovS4?^annlies. It was not competent, therefore, for thé pa; first executing an appeal bond, conditio unless the exception be extended to generally to executors and administrat settled in this court, relieves executors ah the necessity of giving bond, as required only in cases where they would not be person' for even the costs of the appeal. Wade v. Am. Col. Society, 4 S. & M. 670. In the case at bar, the decree of the court of probates, if valid, necessarily imposed a personal obligation on the appellant; and as he asserted a right in opposition to the title of the representative of his ward, the costs of the appeal could not rightfully be taxed against her estate. The appellant' was, therefore, bound to give bond before an appeal could betaken. Not having done so, upon settled rule, this court will' not take jurisdiction of the case. Let the cause be dismissed.