Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Estate of Womack

FEBRUARY 26, 1957.

ESTHER N. SMITH, PLAINTIFF-APPELLANT,

v.

ESTATE OF THEODORE O. WOMACK, DECEASED, CLOYCE WOMACK, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Vermilion county; the Hon. ROBERT C. COTTON, Judge, presiding. Reversed.

JUDGE CARROLL DELIVERED THE OPINION OF THE COURT.

Esther N. Smith, plaintiff, filed her claim against the estate of Theodore O. Womack, deceased, in the Probate Court of Vermilion County. Upon a hearing had on August 26, 1955, the said claim was allowed as of the seventh class.

On September 2, 1955, the defendant, Cloyce Womack, one of the heirs of Theodore O. Womack, deceased, filed an appeal bond in the probate court and on that date it was approved and ordered recorded by the judge of said court. Notice as to the time of presenting the appeal bond to the court for approval was not given to defendant or any of the other parties of record in the estate proceedings. The bond was conditioned upon payment of all costs occasioned by the appeal. The transcript of the record on appeal from the probate court was filed in the circuit court on September 6, 1955.

On September 8, 1955, the defendant filed a motion in the circuit court to dismiss plaintiff's claim on the ground that the same was barred by a prior judgment. This motion contained a detailed statement of the particular facts which allegedly supported the motion. No notice of the filing of this motion was given to plaintiff.

On September 2, 1955, plaintiff entered her special and limited appearance in the cause and moved for dismissal of the appeal on the grounds that notice of application for approval of the appeal bond by the probate court as required by the statute was not given and that said bond was defective in form. The court denied plaintiff's motion and allowed that of the defendant and ordered plaintiff's claim dismissed.

In appealing from the above order, plaintiff makes the following contentions: (1) that the circuit court did not acquire jurisdiction of the appeal because of defendant's failure to give notice of the presentation of the appeal bond for approval; (2) that the appeal bond was defective and should have been stricken; (3) that plaintiff's claim was not barred by a prior judgment.

Attention will be first directed to the contention challenging the jurisdiction of the court since the sustaining thereof obviates the necessity of considering other points urged.

Prior to May 12, 1955, Sec. 330 of the Probate Act, Chap. 3, [§ 484] Ill. Rev. Stat. 1955, which relates to appeals from the probate to the circuit court, provided in part as follows:

"An appeal from any other order, judgment, or decree of the probate court may be taken by any person who considers himself aggrieved to the circuit court by the filing in, and the approval by, the probate court of an appeal bond and the payment of the costs and fees of the appeal."

As of the above date, this section was amended by adding thereto the following:

"The person taking the appeal shall give such notice as the court directs of the time when the appeal bond will be presented to the court for approval to each person who has entered his written appearance in the proceeding in which the order, judgment or decree of the probate court was entered."

It is admitted that defendant did not comply with the requirement provided by the 1955 amendment. He argues however that his appeal was perfected by the filing and approval of the bond and payment of costs. As a result the only question to be resolved is whether despite defendant's failure to follow the statute the circuit court nevertheless acquired jurisdiction of the cause.

An appeal to the circuit court from an order of the probate court in estate proceedings is wholly statutory and strict compliance with the statute granting such right is required. Davison v. Heinrich, 340 Ill. 349; McCormick v. Meisenheimer, 337 Ill. 65; In re Hills' Estate, 305 Ill. App. 193.

Prior to its amendment in 1955, the three essential steps in perfecting appeals from the probate to the circuit court required by Sec. 330 of the Probate Act were (1) filing in the probate court an appeal bond (2) approval of such bond by the probate court and (3) payment of the costs and fees of the appeal. By the amendment the legislature saw fit to provide that in addition to complying with the above requirements, a person taking such an appeal shall give such notice as the court directs of the time when the appeal bond will be presented to the probate court for approval to all persons who have entered their appearances in the proceeding in which the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.