Estate of Iofredo, In re, 36336

• Decision Date: 26 February 1954
• Docket Number: No. 36336,36336
• Citation: 241 Minn. 335,63 N.W.2d 19
• Parties: In re IOFREDO'S ESTATE. MOLD et al. v. IOFREDO.
• Court: Minnesota Supreme Court

Page 19

63 N.W.2d 19

241 Minn. 335

In re IOFREDO'S ESTATE MOLD et al. v.IOFREDO.

No. 36336.

Supreme Court of Minnesota.

Feb. 26, 1954.

Syllabus by the Court.

Under M.S.A.1949, § 525.712,Rules 5.02and6.05 of Rules of Civil Procedure, governing the service and filing of pleadings and other papers in civil actions in the district court and providing for three days additional time to the prescribed period where service is made by mail, are applicable to appeals from the probate court to the district court; and where notice of the filing of the order, judgment, or decree appealed from is served by mail, the party so served has 33 days thereafter in which to appeal to the district court unless the last day falls on a Sunday or a legal holiday in which event the period runs until the end of the next day which is neither a Sunday nor a holiday.

Otis H. Godfrey, St. Paul, for appellants.

Alfred R. Sundberg, St. Paul, for respondent.

CHRISTIANSON, Justice.

Appellants, creditors of the estate of Pat Iofredo, decedent, appeal from a judgment of the Ramsey countydistrict court dismissing their appeal from an order of the Ramsey county probate court allowing the administratrix's account and from a partial decree of distribution entered in said estate.

Notice of entry of the order allowing the account and the partial decree of distribution was mailed by the attorney for the estate to appellants and to their attorney on August 22, 1952.Appellants served notice of appeal therefrom to the district court on September 25, 1952, and filed the same together with proof of service thereof and their appeal bond the same day.Respondent moved the district court to dismiss the appeal on the ground that the appeal was not taken within the time prescribed by law.Thereafter, appellants made a motion in the district court to enlarge the time within which to perfect their appeal.Both motions were heard at the same time, and on January 5, 1953, the district court entered its order denying appellants' motion to enlarge the time within which to appeal and granting respondent's motion to dismiss the appeal.Judgment of dismissal was subsequently entered in the district court and appellants appeal to this court therefrom.

Appellants contend that the purported service by mail of the notice of the filing of the order allowing the account and the partial decree of distribution was ineffectual to start the time running in which to appeal to the district court.They assert that the only form and manner of service authorized by M.S.A.1949, § 525.712, ¹ was that prescribed by M.S.A.1949, §§ 543.17and543.18.

Section 525.712 before it was amended in 1953 provided as follows:

'Such appeal may be taken by any person aggrieved within 30 days after service of Notice of the filing of the order, judgment, or decree appealed from, or if no such notice be served, within six months after the filing of such order, judgment, or decree.To render the appeal effective (1), the appellant shall serve upon the adverse party or his attorney or upon the probate judge for the adverse person who did not appear, a written notice of appeal specifying the order, judgment, or decree appealed from, and file in the probate court such notice with proof of service thereof; (2) pay to the probate court an appeal fee of $3.00 to apply on the fee for the return; and (3)the appellant, other than the state, the veterans' administration, or a representative appealing on behalf of the estate, shall file in the probate court a bond in such amount as that court may direct, conditioned to prosecute the appeal with due diligence to a final determination, to pay all costs and disbursements, and to abide the order of the court therein.

'The notice of the order, judgment, or decree appealed from, the notice of appeal, and the bond if required, Shall be served as in civil actions in the district court.

'When a party in good faith gives Due notice of appeal and omits through mistake to do any other act necessary to perfect the appeal, the district court may permit an amendment on such terms as may be just.'(Italics supplied.)

Respondent concedes that, if §§ 543.17and543.18 were applicable, appellants' appeal to the district court was timely and the judgment of dismissal should be reversed.However, respondent points out that both of these sections of the statute were superseded by Rules 5.02and6.05 of the Rules of Civil Procedure for the district courts of this state which became effective on January 1, 1952.See, Rules 86.01and86.02 and Appendix B(1) of Rules of Civil Procedure.Respondent further points out that, although Rule 81.02 of the Rules of Civil Procedure provides: 'These rules do not supersede the provisions of statutes relating to appeals to the district courts,'the statute governing appeals from the probate courts to the district courts, § 525.712, expressly provides that 'The notice of the order, judgment, or decree appealed from, * * * shall be served as in civil actions in the district court.'Rule 5.02 insofar as here...