Imagens das páginas
PDF
ePub

allow an appeal from his decree, and a formal decree granting such petition, are not usual in practice, nor requisite to the validity of the appeal. Boynton v. Dyer, 18 Pick. 1.

Who may appeal from the Probate Court, is a question that has frequently arisen. And it has been determined that a creditor of a deceased testator or intestate, or of a devisee, has sufficient interest in the question whether administration should be granted, to litigate that question. Stebbins v. Lathrop, 4 Pick. 33; Stebbins v. Palmer, 1 Pick. 71. So a creditor of an heir may appeal from the allowance of a will, devising the real estate, if he has attached it. Smith v. Bradstreet, 16 Pick. 264. So a creditor of a spendthrift from a refusal to put the guardian's bond in suit. Conant v. Kendall, 21 Pick. 36. So the children being the presumptive heirs of a non compos, from the allowance of a guardian's account, (Boynton v. Dyer, 18 Pick. 1,) but not an uncle and next friend. Penniman v. French, 2 M. R. 140. A person under guardianship, as non compos, may appeal in his own name, from a refusal on his own petition to have the letters of guardianship set aside. Mc Donald v. Morton, 1 M. R. 543. And a widow having a greater interest in the personal than the real estate, may appeal from a decree charging certain sums on the personalty that should have been charged upon the realty. Lee's case, 18 Pick. 285; Kempton's case, 23 Pick. 163. So an administrator de bonis non, on the accounts of the original executor or administrator. Wiggin v. Swett, 6 Met. 194.

No recognizance or security of any description is required from parties, who appeal from the Court of Probate.

If, in any case, the appellant neglect to enter his appeal, the remedy of the other party is generally to file a complaint for the affirmation of the original judgment. Howe, Prac. 448.

The effect of an appeal is to render the first judgment wholly inoperative. Davis v. Cowdin, 20 Pick. 510; Paine v. Cowdin, 17 Pick. 142. No execution can issue upon it, nor can it be the foundation of an action of debt, or a bar to another action for the same cause, even if the appellant fail to enter or prosecute his appeal. Campbell v. Howard, 5 M. R. 376. The effect is the same, if the appeal, when duly claimed, be not allowed. If it have been wrongfully disallowed by the Court below, the Court above will sustain the appeal, and take proper measures to give it effect. Bemis v. Faxon, 2 M. R. 141; Lamphear v. Lamprey, 4 M. R. 107. But if an appeal be claimed, in a case not authorized by law, it will be dismissed, and the judgment below will remain in full force. Commonwealth v. Messenger, 4 M. R. 462. The appeal, in such case, is a mere nullity, and if a recognizance have been given, it will be void. Wetherbee v. Johnson, 14 M. R. 412; 2 N. H. 223.

When an appeal is made by one of several parties, it removes the whole case. Thus, if a defendant be defaulted and a trustee appeal, and vice versa, the party appealing carries the rest with him; but it has been considered that, in such case, the cause would not be open for trial as to both, on the appeal. Howe, Prac. 448.

In cases appealed from the Court of Probate, the Supreme Court is expressly authorized to pass such decree, as ought to have been passed by the Court below, or to remit it there for further proceedings, or

to pass any other order, that law and justice may require, c. 83, § 44. In other cases, it has been a question often discussed, but never finally decided, whether the Appellate Court may enter the judgment that ought to be entered, or shall be required simply to affirm .or reverse the judgment below, in cases where it is manifest that the proceedings below are erroneous. Suppose a Justice of the Peace should, in a civil cause, render judgment for the plaintiff in an action of assumpsit, for one hundred dollars, or should, in a criminal case, impose a fine of fifty dollars; in each case clearly exceeding his jurisdiction, and the losing party should appeal; - he has certainly good cause of appeal the judgment is erroneous upon its face; and ought it not, therefore, to be reversed? If it be not reversed, but the Court above proceed to inquire, by a jury or otherwise, what judgment shall be rendered, the appellant, who might have been perfectly willing to abide a proper judgment of the Court below, has been deprived, without his fault, of a trial before the tribunal specially authorized by law to try such cases, and subjected to great and unnecessary charges and costs. Upon this question, the writer has found eminent Judges and Jurists to entertain different opinions. See Murdock's case, 7 Pick. 324. This subject will again come under consideration, when we have occasion to speak of the judgment to be rendered on writs of error.

In appeals from Justices, it has been seen, that the appellant may be required to recognize to the adverse party to prosecute his appeal with effect, and to pay all such costs as may arise after the appeal, c. 85, § 14. Very few instances have occurred in which such a demand has been made. It has been held, that if a

party enter his appeal and then become nonsuit, it is prosecuting the appeal " with effect," within the meaning of the recognizance. Hobart v. Hilliard, 11 Pick. 143. Nor can they be recovered against the surety, unless they were taxed, and judgment rendered therefor in the original action; and then by an action for that amount on the recognizance. Such would seem to be the effect of the decisions in Whitwell v. Burnside, 1 Met. 39; Swan v. Picket, 4 Pick. 465; Braman v. Perry, 12 Ib. 118. ity of the same cases, it would seem, that they cannot be recoverable against the surety, if an execution for them has ever been issued against the principal.

And upon the author

The right of appeal is now so restricted, and the mode of procedure is so much simplified by the statutes, that a further discussion of this subject does not seem to be necessary.

CHAPTER XXVIII.

EXCEPTIONS AND REPORTS.

THE most usual form of presenting questions of law for the determination of the Supreme Court, is by a bill of exceptions. In all cases which are tried in the Common Pleas, the party aggrieved by any opinion, direction or judgment of that Court, has a right to file exceptions, at any time before the adjournment of the Court. Rev. Stat. c. 82, § 12. Whenever the question of law is apparent on the record, the proper mode of presenting it to the Court above is by appeal; but in all other cases, by a bill of exceptions. Thus if it be objected to an award, that it is uncertain or not within the submission, the remedy is by appeal; but where objections are made on extraneous grounds, the remedy for an erroneous decision of the Common Pleas is by a bill of exceptions. Eaton v. Hall, 5 Met. 287; Harris v. Seal, 23 Maine, 435.

The provision in the section above cited is, that exceptions shall be allowed in the Common Pleas, whether the proceedings were according to the course of the common law or otherwise. It had been previously determined (24 Pick. 339), that exceptions would lie only in cases where the proceedings were according to the course of the common law. The statute has annulled the decision. So in Maine, exceptions lie when the suit is by statute process. Rev. Stat. of Maine, c. 32, §7; Bridgton v. Bennett, 23 Maine, 420.

The comments of the Judge upon the evidence, not

« AnteriorContinuar »