sary steps. If he is cited and it is shown that he has not done so, at least nominal damages are recoverable. 82 In cases of insolvency it is generally his duty to inform the court of the fact, in which event in many jurisdictions a commission is appointed to pass upon the claims submitted and determine the percentages to be paid.88 It is the duty of the representative to apply to the court after the report of such a commission has been filed for an order of distribution though there is no breach of bond prior to a citation in some states.8 It is his duty to bring all actions for the recovery of property belonging to the estate since no one else can bring such an action.85 84 An action for failure to account must state that property has come into the hands of the representative and that he failed to show it in the inventory and to have it appraised. A mere allegation that he failed to inventory and appraise the property is insufficient.86 If there is a judgment in favor of the estate btained by the former representative and it is desired to charge the defendant representative with the value of it, it must be shown that he had knowledge of it.87 Generally speaking, it is necessary to apply to the court for an order to sell land, even where the will authorizes a sale, unless the will expressly provides that no order of court shall be required.88 The effect of the statute of limitations upon suretyship contracts has been discussed. In the case of bonds given by personal representatives there is in addition to be considered the statute of non-claim. It can readily be seen that if an administrator dies, from whom a claim is due, or who has committed a devastavit, the statute of non-claim would require the presentation of this claim to his representative within the proper period or no recovery from his estate could be had. The statute of non-claim, however, would not suffice to relieve the surety in 82 People v. Hunter et al. (1878) 89 Ill. 392. 88 Probate Ct. v. Carr (1898) 20 R. I. 592. 84 Probate Ct. v. Carr (1898) 20 R. I. 592. 85 Butler Conn. 580. V. Sisson (1882) 49 86 Judge of Probate V. Lane (1832) 6 N. H. 55. 87 State v. Scott (1859) 12 Ind. 529. 88 Gay v. Grant (1888) 101 N. C 206, 8 S. E. 99. whose favor the statute of limitations must run before he escapes liability on the bond.89 The mere fact that the court may not be able to retain assets of the estate to pay debts where the residuary legatee is executor and gives the proper bond will not prevent the statute of nonclaim from running.90 On a claim for waste, the statute is sometimes said to run from the date of the devastavit, but more often from the date of the judicial determination of that fact. § 285. Final settlement as judgment. A final settlement is regarded as a judgment and is not subject to collateral attack nor to be set aside in equity save for fraud.91 Probate courts are as a general rule given the power to re-open and review their judgments and amend them. On the other hand, periodic settlements are not conclusive and may be corrected on the final settlement.92 It has been held that an ex parte settlement by the representative was at least prima facie evidence against him and his sureties of the amount due.9 93 § 286. Proceedings in review. There are two methods to secure the revision of an inferior court by a higher court. First, by an appeal, which is the method available for the review of equity cases.94 The appellate court usually acquires no juris 89 People v. White (1849) 11 Ill.. son v. Dekum (1898) 32 Ore. 506, 342; Williams v. State, use of 52 Pac. 517; on rehearing p. 755; Flippin (1891) 68 Miss. 680, 24 A. In re Yung's Estate (1901) 199 S. R. 297. Pa. 35, 48 Atl. 692; Meyer v. Barth (1897) 97 Wis. 352, 72 N. W. 748, 65 A. S. R. 124. See also McBroom v. Governor (1837) 6 Porter (Ala.) 32; Austin v. Raiford (1881) 68 Ga. 201; State v. Morrison (1912) 244 Mo. 193, 148 S. W. 907; Wilson v. Rose (1828) 3 Cranch C. C. 371. 90 Holden v. Fletcher (1850) 6 Cush. (Mass.) 235. 91 Perkins v. Moore (1849) 16 Ala. 9; Salyer v. State (1854) 5 Ind. 200; Judge of Probate V. Quimby (1897) 89 Me. 574, 36 Atl. 1049; Grady v. Hughes (1890) 80 Mich. 184, 44 N. W. 1050; Thomp 92 Clark v. Cress (1865) 20 Ia. 50; Picot v. O'Fallon (1864) 35 Mo. 29. 93 Slaughter v. Froman (1825) 2 T. B. Monroe (Ky.) 95. 94 Metropolitan Railroad Co. v. District of Columbia (1904) 195 U. S. 322, 25 Sup. Ct. 28, 49 L. Ed. 219; Carino v. The Insular Government of the Philippine Islands (1909) 212 U. S. 449, 456, 29 Sup. Ct. 334, 53 L. Ed. 594. diction when an attempt is made to review by writ of error when it should have been by appeal, though the parties may have consented.95 The second method is by writ of error.96 In the Federal system, a writ of error brings up questions of law only; while on appeal, both law and fact may be examined by the reviewing tribunal.97 The writ of error is the proper method to secure the review of a judgment of state court involving the determination of a Federal question, whether the action in the state court be at law or in equity; but the question involved is obviously one of law.98 It must be observed, however, that the appellate practice in different jurisdictions must vary; and consultation of the legislation, which must be followed strictly, is necessary. The practice in a state may or may not follow in general that of the Federal courts, but it will be found to have developed from the common law courts.99 a 95 Harry Bros. Co. v. Yaryan Naval Stores Co. et al. (1915) 219 Fed. 884, 135 C. C. A. 454. But see, so far as the Federal courts are concerned, the Act of February 13, 1925, c. 229, Sec. 10, 43 Stat. 941, amending Sec. 240 of the Judicial Code to read as follows: "No court having power to review judgment or decree of another shall dismiss a writ of error solely because an appeal should have been taken, or dismiss an appeal solely because a writ of error should have been sued out; but where such error occurs the same shall be disregarded and the court shall proceed as if in that regard its power to review were properly invoked.'' 96 In re Issuing Writs of Error (1912) 199 Fed. 115, 117 C. C. A. 603. 97 Dower v. Richards (1894) 151 U. S. 658, 663, 14 Sup. Ct. 452, 38 L. Ed. 305; Chicago, Burlington & Quincy R. R. Co. v. Chicago (1897) 166 U. S. 226, 246, 17 Sup. Ct. 581, 41 L. Ed. 979. 98 Dower v. Richards (1894) 151 U. S. 658, 666, 14 Sup. Ct. 452, 38 L. Ed. 305; Nashville, C. & St. L. Ry. v. Taylor et al. (1898) 86 Fed. 168, 175. See Act of Feb. 13, 1925, c. 229, 43 Stat. 937, amending Sec. 237 of the Judicial Code. 99But what is the force and effect of an appeal from such an order under our practice, and how is it tried in this court? An examination of this question is attended with much confusion, owing to the fact that in some states all appellate proceedings are denominated 'appeals' while in others the distinction between appeals in equity and review upon petition in error is strictly adhered to. Ours appears to be a modified form of the old practice, and, although the distinction between appeals and proceedings in error is maintained, the difference in cases like this exists in name, rather than in fact. An appeal, strictly speaking, is the removal of a cause from the lower to the appellate court for trial de novo. § 287. Appeal bonds. It seems that at common law a writ of error, without any security, operated as a supersedeas or stay of execution from the time it was allowed. The defendant, by bringing a writ of error, without a bond, could delay the plaintiff in his execution. This practice naturally led to abuses, for the defendant as a matter of right, might unnecessarily delay the plaintiff from recovering, and cause him injury. To prevent such abuse, error in the record was necessary to allow a writ of error. Parliament subsequently required that in certain cases security be given that the plaintiff in error would prosecute the writ with effect, and if the judgment be affirmed, to pay all debts and damages adjudged, and all damages and costs to be awarded for delaying the execution.100 Such was the practice in the colonies prior to the Revolution. The different states have since made provisions for appeal. Whether the effect is to vacate the judgment of the lower court, or to stay execution, depends upon the statute. In some states, a special order and bond are required for appeals in certain cases, to act as a supersedeas; in others, the notice of appeal, and the execution of a proper bond, will stay further proceed Mr. Powell, in his work on Appellate taken from the court below into the ings. Whether the appeal is in the form of a writ of error or a retrial of the issues, the statute usually permits it as a matter of right, but protects the defendant in error by requiring that the appellant give a bond, usually called an appeal bond, conditioned that the appeal will be prosecuted with effect, and also that the appellant will pay the costs of the suit and damages for delay in enforcing the judgment. It should be noted. that the condition to prosecute is separate from the other conditions of the bond, such as to perform the judgment, and a breach of any condition may create a liability against the obligors. An appeal bond is a contingent security, vitalized only by the affirmance of the judgment or decree which is the subject of review, or failure of the principal to prosecute the appeal. In case of appeal from what may be called money judgments, the surety agrees to pay (a) the original judgment, and (b) the costs and damages occasioned by the delay of execution.5 1 Erie R. R. Co. v. RochesterCorning-Elmira Traction Co. (1907) 57 Misc. 180, 107 N. Y. S. 940. 2"The object of the bond is to save all the rights of the appellee, without prejudice or diminution during the pendency of the appeal, and at the same time to prevent frivolous, vexatious, and unnecessary appeals. It is not intended as an additional security for the original indebtedness of the delinquent party, but as an indemnity to the appellee against further trouble, expense and costs while the case is undergoing a review in this court to ascertain whether or not error has been committed or injustice done the appellant by the decree of the court below." Kennedy v. Nims (1883) 52 Mich. 153, 17 N. W. 735, 736. 3 Hughes v. Keith et al. (1924) Mo. Ct. App. 267 S. W. 38. 4"While the enforcement of the judgment is suspended by the appeal, the bond is but a contingent security, and appellee can have no remedy upon it. It is only when the original judgment becomes enforceable by affirmance, or by the failure of the appeal, that appellee can resort to his action upon the bond. Thus it is apparent that the appealbond is not a substitute for the original judgment. Its vitality depends upon the survival of the judgment. Its fate is inseparably linked with the judgment. If the judgment be reversed, the obligation of the appeal-bond becomes void; if the judgment be affirmed, the obligation remains in full force and effect. Such, in substance, is the language such is the legal tenor and effect of the bond." Rockwell et al. v. District Court of Lake County et al. (1891) 17 Colo. 118, 29 Pac. 454, 456, 31 A. S. R. 265. 5 Omaha Hotel Co. et al. V. Kountze et al. (1882) 107 U. S. 378, 2 Sup. Ct. 911, 27 L. Ed. 609; Wood v. Brown (1900) 104 Fed. 203, 43 C. C. A. 474. |