Scott v. Crow, 7 Ill. 347, 2 Gilm. 347 (1845)

Dec. 1845 · Illinois Supreme Court

7 Ill. 347, 2 Gilm. 347

James M. Scott, plaintiff in error, v. Wayman Crow et al., defendants in error.

Error to St. Clair.

The proper mode of appealing from a decision of the Prohate Justice in regard to the allowance of a claim against a decedent’s estate, is hy tendering a bill of exceptions, and entering into bond within ninety days.

Joseph Scott, administrator of the estate of Samuel Scott, deceased, appealed to the Circuit Court of St. Clair county from an allowance of a claim by the Probate Justice of that county, filed by Crow & Tevis against said estate for $301-22. The claim was the balance due upon a note given by one William R. Scott to said Crow & Tevis, the date of which note, and the consideration thereof, were subsequent to the death of the said Samuel Scott.

On motion of Crow & Tevis, at the August term of the St. Clair Circuit Court 1839, the Hon. Sidney Breese presiding, the appeal was dismissed because it was not taken in the same manner as an appeal from ordinary justices of the peace,—within twenty days.

A writ of error was prosecuted in the name of the present plaintiff by leave of the Court, he being a minor at the time of the allowance of the claim and interested in the judgment as one of the heirs of the said Samuel Scott.

L. Trumbull, for the plaintiff in error.

The decision of the Circuit Court dismissing the appeal is assigned for error. The appeal was taken by tendering a bill of exceptions, and filing bond in ninety days, which was the proper mode in this case. R. L. 653; Scott v. Crow, 4 Scam. 183.

J. Gillespie, for the defendants in error.

The Court is called upon a second time to adjudicate upon what they have already adjudicated. Scott v. Crow, 4 Scam. 183. The appeal should have been taken within twenty days. Gibbons v. Johnson, 3 Scam. 61.

Trumbull, in conclusion.

This Court decided that the Circuit Court, in the case in 4 Scam., erred in dismissing the appeal, and that is the only question now before the Court.

The Opinion of the Court was delivered by

Treat, J.^*

On the 31st of December, 1838, the Probate Justice of the peace of St. Clair county allowed certain claims against the estate of Samuel Scott, deceased, in favor of Crow & Tevis. Joseph Scott, the administrator, tendered a bill of exceptions to the decision of the Probate Justice, and prayed an appeal to the Circuit Court, which he perfected by the entering into bond on the 23d of March, 1839.

The Circuit Court, on the motion of Crow & Tevis, dismissed the appeal because it was not táken within twenty days after the decision complained of was made. That decision of the Circuit Court is now assigned for error by the administrator.

This cause has already been before this Court, and a decision made on another question presented in it.. The Opinion is reported in 4th Scammon, 183. The Court there gave a general construction of the statute regulating appeals from the orders and judgment of Probate Justices. Upon reflection, we are satisfied of the propriety of the construction then given. According to the opinion there expressed, the proper mode of appealing from a decision of the Probate Justice in a case like the present, is by tendering a bill of exceptions and entering into bond within ninety days. That course was adopted by the administrator, and the Circuit Court erred in dismissing the appeal.

The judgment of the Circuit Court is reversed with costs, and the cause is remanded for further proceeding's.

Judgment reversed. '

* Koerner, J. having been of counsel in this cause in the Court below, did not sit at the hearing in this Court. Wilson, C. J. did not hear the argument, &c.