Appeal of Mullins

40 Wis. 154

• Court: Wisconsin Supreme Court
• Decided: January 15, 1876
• Status: Published

Opinion

Ryan, C. J.

I. Probably, in any case, the special administrator should be considered as the adverse party, to whom, in circumstances like these, the appeal bond should run. He is, for the time being, the only representative of the estate. If the appeal succeed, the estate would bear the costs. If the appeal fail, it seems that the estate should recover the costs. Here, however, the special administrator is also the proponent of the will and the executor named in it. There appears no room for doubt that he is the adverse party to whom the appeal bond should run.

II. The insertion of the name William Mullins, for Michael Mullins, in the appeal bond, is obviously a clerical mistake. The notice of appeal is to Michael, as special administrator; and the bond itself runs to William, as special ad/rrmvistraio.r of the estate. It is obvious that the bond is not intended to run to a different person, but to the same person by a different name: an accidental misnomer. If it were our duty to uphold the dismissal of an appeal on so purely technical a ground, for so mere a slip of the pen, we should regret it. Rut we cannot think the mistake sufficient to defeat the bond.

The bond goes to the special administrator, in his representative character; and would, doubtless, be good without the use of his personal name. And if the appeal should fail, we can see no difficulty in the way of the special administrator’s suing as such in his proper name, upon the bond, averring the special administrator to be therein called William instead of Michael. The right is in neither Michael nor William personally, but in the special administrator of the estate; and the misnomer of the person leaves no doubt of the obligee of the bond. Falsa demonstratio non nocet. 2 Parsons on Con., 514.

It is always the duty of all courts, where it can be done, to overcome and disregard such clerical errors, ut res magis valeat quam pereat. Davis v. Judd, 11 Wis., 11; Morrison v. Austin, 14 id., 601; Nolty v. State, 17 id., 668; Russell v. Monson, 33 Conn., 506; Stockton v. Turner, 7 J. J. Marsh., 192.

Eoi’ these reasons we think the first appeal bond sufficient, and need not consider the question whether, if insufficient, it might be replaced by an amended one.

By the Oowt. — The order of the court below dismissing the appeal is reversed.