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11 R.I. 420

Barnes v. Mowry

Supreme Court of Rhode Island

Decided July 14, 1877

Supreme Court of Rhode Island · decided 1877-07-14

<p>If the commissioners on a decedent’s insolvent estate allow an illegal claim, the remedy is by appeal from the “judgment of the commissioners,” under Gen. Stat. R. I. cap. 175, § 13, not by appeal from the decree of the Probate Court confirming the report of the commissioners.</p> <p>An appeal from the decree of the Probate Court so taken cannot be amended by striking out the words, “ Decree of the Probate Court,” and inserting the words, “Judgment of the commissioners,” this being equivalent to the substitution of one appeal for another.</p> <p>An appeal from the judgment of the commissioners on a decedent’s insolvent estate under Gen. Stat. R. I. cap. 175, § 13, is to be taken within forty days from the time their judgment and report are received by the Probate Court, and this time is not extended by the pendency of an appeal from the order of the Probate Court directing such judgment and report to be received.</p> <p>Note by the Reporter. — See Sheldon, Adm’r, v. Ct., of Prob. of Johnston, 5 R. I. 436, and Shaw v. Newell, 9 R. I. 111. In the first ease the administrator was the appellant, and the appeal was dismissed on the ground of insufficient notice. In the second case the appeal was in fact from an order of distribution, as follows: “ Municipal Court of the City of Providence, July, 28, 1868. It is further ordered and decreed that the administrator distribute the balance of funds in his hands to and among the creditors whose claims have been allowed by the commissioners, in proportion to the sums unto them respectively due and owing, that is to sajr, at the rate of — per cent, upon the amount of their several claims : to wit, to—</p> <p>Gen. Stat. R. I. cap. 175, § 13, corresponds to Rev. Stat. R. I. cap. 158, § 9.</p>

Cited by 3 later decisions — most recently May 1912

3 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1877-07-14

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¶1This is an appeal from the judgment or report of the commissioners appointed by the Court of Probate of Pawtucket upon the estate of Spencer B. Mowry, represented insolvent. The commissioners reported October 24, 1873, and their report was received November 26, 1873. The order or decree receiving the report was appealed from and was affirmed by this court February 20, 1877. This appeal from the judgment of the commissioners, was taken February 28, 1877 The appellee moves to dismiss it on the ground that it was not taken in due time. The statute requires that such an appeal shall be taken within forty days. Gen. Stat. R.I. cap. 175, § 13. The appellant contends that this means within forty days after the report is received. We think the construction is reasonable; for the report or judgment has no force independently of the tribunal which receives it. He also contends that, inasmuch as the order receiving the report was appealed from, the time for appealing from the judgment reported was thereby prolonged until forty days after the order was affirmed. We think that *424 does not follow. The appeal under our statute does not vacate the order; still less does it vacate the judgment; it simply suspends their operation, and there is nothing to prevent an appeal from a judgment whose operation is suspended. A stay of execution would not prevent an appeal. The judgment remains until the order is disaffirmed. If the order is affirmed, the judgment always remains. An appeal from the judgment, therefore, pending an appeal from the order is valid. Both appeals might be taken together. The forty days are simply the forty days after the order, whether the order is appealed from or not. It is true this is a strict construction, but it is in harmony with the policy of the law, which favors speedy settlements.

¶2Motion granted

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