Ashbrook's Estate, In re, 7936

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: TEIGEN; SATHRE
• Citation: 110 N.W.2d 184
• Parties: In re ESTATE of Emma ASHBROOK. C. H. ERBELE, Petitioner and Appellee, v. Mary Owen GLERUM, Respondent and Appellant, Nell Doyon Pabst, formerly Nell J. Doyon, Rolf D. Glerum, Jr., Nellie Gadge Wells, Episcopal Missionary District of North Dakota, North Dakota Episcopal Women's Auxiliary and all other persons unknown interested in said Estate, Respondents.
• Docket Number: No. 7936,7936
• Decision Date: 27 May 1961

Page 184

110 N.W.2d 184 In re ESTATE of Emma ASHBROOK.
C. H. ERBELE, Petitioner and Appellee,
v.
Mary Owen GLERUM, Respondent and Appellant,
Nell Doyon Pabst, formerly Nell J. Doyon, Rolf D. Glerum,
Jr., Nellie Gadge Wells, Episcopal Missionary District of
North Dakota, North Dakota Episcopal Women's Auxiliary and
all other persons unknown interested in said Estate,
Respondents. No. 7936. Supreme Court of North Dakota. May 27, 1961.
Rehearing Denied Aug. 10, 1961.

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Syllabus by the Court

1. Where notice of appeal from county court to the district court must be served, service must be made in the manner provided by Sections 30-02-09, 30-02-10, and 30-02-11, NDCC.

2. Service of notice of appeal from county court to district court upon an attorney of record, as authorized by Section 30-02-19, NDCC, must be made in the manner provided by Sections 30-02-09, 30-02-10, and 30-02-11, NDCC, and Rule 5(b), N.D.R.Civ.P. does not apply.

3. A notice of appeal from county court to district court under provisions of Chapter 30-26, NDCC, may be served upon an attorney of record and such service shall be deemed service on the person represented by the attorney.

4. The requirements for personal service under Section 30-02-09, NDCC, of notice of appeal from county court to district court are not met by mailing of notice of appeal to party, nor is it the equivalent thereof.

5. The jurisdiction of a county court to extend the time for perfection of service of notice of appeal from the county court to the district court under Section 30-26-06 NDCC, is dependent upon the requirement of the statute that appellant has seasonably and in good faith made service upon some of the parties in accordance with the mode of service provided by the statutes. In the absence of compliance with this requirement, the county court had no jurisdiction of the subject matter on which it assumes to act and its proceeding results in a void order.

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6. Where county court's order extending the time for perfection of service of notice of appeal to district court was void when made on jurisdictional grounds, the jurisdictional defect cannot be cured in the appellate court to validate the county court's order or to preclude collateral attack.

7. Where appellant, through failure to make valid service on any of the parties respondent of notice of appeal from the county court to the district court, has in fact taken no appeal, appellee's motion for dismissal of appeal directed to the district court will be treated as a motion to strike the cause from the record of the court, and the cause ordered stricken from the appeal record.

Duffy & Haugland, Devils Lake, for respondent and appellant.

Day, Stokes, Vaaler & Gillig, Grand Forks, and Ralph S. Oliver, Larimore, for petitioner and appellee.

TEIGEN, Judge.

This is an appeal from an order of the district court dismissing an appeal taken from the county court. The only question is whether the appellant, in attempting to perfect her appeal from the county court to the district court proceeded in such a manner as to confer jurisdiction upon the district court.

It appears Mary Owen Glerum unsuccessfully sought to contest a document purporting to be the last will and testament of Emma Ashbrook, deceased, in county court. The county court found in favor of the petitioner, C. H. Erbele, and entered its order admitting the document to probate as the last will and testament of the deceased, Emma Ashbrook. It is from this order admitting will to probate that the appellant attempts to appeal.

7

The district court was of the opinion that the appeal had not been properly perfected and that it, therefore, lacked jurisdiction. This was on the ground that the statutory requirements relative to service of the notice of appeal had not been met. It ordered the appeal dismissed.

The petitioner in the county court is the person designated as executor in the document admitted as the last will and testament of the deceased. He was the movant in the distrct court for a dismissal of the attempted appeal, and he is referred to as the appellee in this proceeding.

The appellant, in order to obtain service upon the parties, including the appellee herein, caused a notice of appeal to be mailed to each of them by ordinary mail. A copy of the notice of appeal was also mailed by ordinary mail to the attorney of record in the county court for the appellee. The appellant prepared and filed in the county court an affidavit of mailing, which affidavit discloses that all of the proper steps were taken to make service by mail as provided by Section 30-02-11, NDCC, except that the mailing was not by registered or certified mail.

The mailings in the manner afore-described were completed to all of the parties of the appeal, except one, within the statutory time provided for the taking of appeals from the county court as provided by Section 30-26-03, NDCC. The mailing of the notice of appeal to one party was made four days after the statutory time provided by said statute had expired. After the statutory time for appeal had elapsed, the appellant filed in the office of the county court an application for extension of time to perfect an appeal under Section 30-26-06, NDCC.

The county court on the same day summarily granted the application and entered its ex parte order extending the time for perfecting the appeal. Within the time extended, the appellant mailed a copy of

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the notice of appeal to all of the parties by registered mail and filed an affidavit of mailing with registry receipts attached.

The appellee, Erbele, filed a notice of appeal from the order of the county court extending the time for perfecting the appeal. It does not appear that this appeal has been disposed of in the courts as a separate appeal, but the order extending the time for perfecting the appeal was considered by the court in the motion for dismissal of the appellant's appeal to the district court.

There were two motions made for dismissal of appellant's appeal to the district court, each made by the appellee. By agreement of counsel, these motions were presented and argued together as one motion. Both motions were noticed for hearing after the date of the county court's ex parte order extending the time for perfecting the appeal, and after the date to which such time was extended.

Following the hearing on the combined motions for dismissal of the appeal, the district court entered its order, dated September 30, 1960, dismissing the appeal. A copy of this order was served upon the attorneys for the appellant. However, the original order was not filed in the office of the clerk of the district court for some time. Prior to its filing the appellant made application for and obtained a rehearing in the district court.

At the rehearing the appellant introduced the written admission of service from Rolf D. Glerum, one of the parties respondent in the appeal to the district court, in which he admitted timely delivery of a copy of a notice of appeal from the county court to the district court. Upon inquiry the district court was advised by the attorney for the appellant that he had sent the admission of service to Mr. Glerum, that it had not been returned until after the hearing on the motion for dismissal, and that he had not regarded it as of much consequence until he was studying procedure for an appeal to the Supreme Court.

The district court in its second memorandum decision on the rehearing found that the admission of service had not been sent the respondent Glerum until September 27, 1960, long after the time for appeal from the county court had expired. Thereafter, to wit, on December 13, 1960, the order dismissing the appeal originally entered by the court on September 30, 1960, was filed and docketed in the office of the clerk of the district court. Whereupon appellant took the instant appeal.

The appeal to this court is taken from the whole of the order dismissing the appeal from the order of the county court admitting will to probate. The order dismissing the appeal was grounded on the finding that the appeal was not properly taken as provided by law and that the district court was without jurisdiction.

The appellant specifies as error of law:

1. The court erred in determining that the appeal of the county court was not properly taken.

2. The court erred in determining that the county court was without power to extend the time for perfecting the appeal.

3. The court erred in determining that the court was without jurisdiction of the appeal.

4. The court erred in passing upon the validity of the order of the county court in a collateral proceeding.

5. The court erred in determining that none of the respondents had been served with notice of appeal.

6. The court erred in entering its order dismissing the appeal.

The party who makes a motion has the burden of sustaining the grounds thereof. A party who moves for a dismissal

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of an appeal from the county court, on the grounds that the appeal was not timely nor properly perfected, has the burden of showing from the records the facts necessary to sustain the verdict. Colwell v. Union Central Life Inc. Co., 59 N.D. 768, 232 N.W. 10, 88 A.L.R. 409. There is no evidence and no claim that the notices of appeal mailed, by ordinary mail, were not received. For the purpose of considering the questions involved, we may assume the notices of appeal mailed, by ordinary mail, were received in the due course of the mails by each of the parties.

The appellant's contention that the notices of appeal were served in a manner provided by law requires a consideration of the laws of the State relating to service of such notice.

Chapter 30-26, NDCC, relates to appeals from the county court to the district court.

'Any party to a proceeding in county court, * * * who deems himself aggrieved by a decree or any order affecting a substantial right made by a county court, may...