First Unitarian Society of Minneapolis v. Houliston

• Decision Date: 01 December 1905
• Docket Number: 14,481 - (80)
• Citation: 105 N.W. 66,96 Minn. 342
• Parties: FIRST UNITARIAN SOCIETY OF MINNEAPOLIS v. MARY A. HOULISTON
• Court: Minnesota Supreme Court

105 N.W. 66

96 Minn. 342

FIRST UNITARIAN SOCIETY OF MINNEAPOLIS v. MARY A. HOULISTON

Nos. 14,481 - (80)

Supreme Court of Minnesota

December 1, 1905

Appeal to the supreme court by First Unitarian Society of Minneapolis from an order of the district court for Hennepin county, John Day Smith, J., dismissing an appeal from an order of the probate court for that county. Reversed.

SYLLABUS

Appeal.

Held distinguishing Capehart v. Logan, 20 Minn. 395 (442), and Stellmacher v. Bruder, 93 Minn. 98, that the appeal taken by the appellant herein from an order of the probate court allowing the claim of the respondent herein against the estate of a deceased person in part, and disallowing the balance thereof, was from the whole order and that the district court erred in dismissing the appeal.

Notice of Appeal.

A notice of appeal must be liberally construed.

S. R. Child, for appellant.

Keith, Evans, Thompson & Fairchild and Charles V. Smith, for respondent.

OPINION

START, C.J.

This is an appeal from an order of the district court of the county of Hennepin dismissing an appeal from an order of the probate court allowing a part of the respondent's claim against the estate of Alma A. Andrus, deceased. The claim of the respondent, Mary A. Houliston, as filed in the probate court, was for the sum of $1,264.50, and that court on August 10, 1904, made and filed its order with reference to the claim, which, so far as here material, was in these words:

It is therefore ordered that said claim be and the same is hereby allowed in the sum of $880; the sum of $384.50 thereof being hereby disallowed.

Thereupon the appellant here made, served, and filed a notice of appeal from such order. The here material part of the notice reads as follows, namely:

You will please take notice that the First Unitarian Society of Minneapolis, Minn., residuary legatee in the will, appeals to the district court of the county of Hennepin, state of Minnesota, from that certain order of said probate court made and filed herein on the 10th day of August, 1904, allowing the claim of Mary A. Houliston against the above estate in the sum of eight hundred eighty dollars.

Upon respondent's motion the district court made its order dismissing the appeal, from which the legatee appealed to this court.

It is the contention of the respondent that the notice of appeal is substantially and fatally defective, in that it restricts the appeal to a consideration of the part of the order which allows the respondent $880, and prevents any review of the part of the order which disallows $384.50 of her claim. This contention is based upon the following cases: Capehart v Logan, 20 Minn. 395 (442); St. Paul Trust Co. v. Kittson, 84 Minn. 493, 87 N.W. 1012; Stellmacher v. Bruder, 93 Minn. 98, 100 N.W. 473. In the first case cited the claim presented to the commissioners was a single claim comprising several items, a part of which were allowed and the others disallowed, and the application of the creditor for an appeal from the report of the commissioners expressly limited the appeal to the items disallowed. In the second case cited it was held that an appeal from an independent and distinct part of an order allowing the account of an executor was proper. The appeal in the last case cited was by a creditor, a part of whose claim, single in character, was disallowed by the probate court, and he...