Muirhead v. Muirhead

16 Miss. 211

• Court: Court of Appeals of Mississippi
• Decided: January 15, 1847
• Status: Published

Opinion

Mr. Justice Thacher

delivered the opinion of the court.

The plaintiff in error instituted an action of replevin in the circuit court of Choctaw county, to recover certain property of the estate of Charles Muirhead, deceased, of which estate he claimed to be administrator. A bill of exceptions filed to the refusal of the court below, to give an instruction called for by the plaintiff, discloses the main question in this case to be, what the effect is of an appeal from a decree of a probate court revoking a grant of letters of administration. This court has already held, that an appeal suspends the operation of the decree. Wade v. The American Colonization Society, 4 S. & M. 670. In the case now before us, the plaintiff’s letters of administration upon the estate of Charles Muirhead had been revoked, and letters of administration granted to the defendants; but the plaintiff had appealed from that decree, and the appeal was pending at the period of the trial of this case below, and no appointment of any person to act as administrator under the statute (H. & H. 385, § 1,) appears to have been made. The court below refused to charge the jury, that the effect of the appeal from the decree of the probate court suspended the operation of the decree. This, as we have seen, must be Jield to be error.

The objections to the bill of exceptions; first, contain the whole evidence in the case; and seq not stated therein that it was signed “ before <$R from the box,” are met by the circumstances «h? filed to a refusal of the court to give an instrumifi the plaintiff, and so much only of the evidence as bore upon the propriety of the charge required ; and secondly, that the bill contains ample internal evidence of its having been signed before the jury retired from the box.

The judgment is therefore reversed, and the cause remanded for a new trial.