In re Estate of Nelson
| Decision Date | 13 June 1930 |
| Docket Number | 28,002 |
| Citation | 231 N.W. 218,180 Minn. 570 |
| Parties | IN RE ESTATE OF ANDREW D. NELSON; EMIL J. ANDERSON AND ANOTHER, APPELLANTS |
| Court | Minnesota Supreme Court |
Emil J. Anderson and anna P. Nelson as administrators of the estate of Andrew D. Nelson appealed from an order of the district court for St. Louis county, Freeman, J. dismissing for want of jurisdiction their appeal from an order of the probate court, Archer, J. allowing a claim of the National Surety Company against the estate. Affirmed.
Service by mail -- statute does not apply to papers in probate court proceedings.
1. The statute authorizing service of notice and other papers by mail (G.S. 1923 [2 Mason, 1927] § 9242) does not apply to proceedings in the probate court, its effect being limited to action and proceedings in the district court.
But service is good if notice is mailed and actually received.
2. In order to set running the 30 days allowed for an appeal from an order, judgment or decree of the probate court, actual service of notice of the filing of the order, judgment or decree is sufficient. While service by mail in its technical and statutory sense is not authorized, yet if such a notice is mailed and actually received by the addressee the service is good.
Presumption of its receipt.
3. The ordinary presumption of its receipt by the addressee in due course of mail applies to such a notice properly mailed with postage prepaid.
E. J. Larsen and Jenswold, Jenswold & Dahle, for appellants.
Courtney & Courtney, for National Surety Company, respondent.
Appeal from an order of the district court dismissing an appeal from the probate court for want of jurisdiction.
August 21, 1929, the probate court of St. Louis county made an order allowing a claim against the estate of Andrew D. Nelson in the sum of $2,944.70. August 22 the claimant's attorneys deposited in the mail at Duluth, with postage prepaid, a written notice of the order directed to the opposing counsel, E. J. Larson, at Virginia, Minnesota. If the notice was delivered in due course it reached the latter not later than August 23. There is no direct evidence that the notice reached Mr. Larsen, but he does not deny its receipt. Appellants' notice of appeal with proof of service was not filed in the probate court until November 23, 1929, three months later. The appeal was dismissed for noncompliance with the statute (G.S. 1923 [2 Mason, 1927] § 8985) which makes ineffectual "for any purpose" an attempted appeal from the probate court, unless "within thirty days after notice of the order, judgment, or decree appealed from" a written notice of appeal is both duly served and filed, with proof of service, in the probate court.
1. The "service by mail" authorized by G.S. 1923 (2 Mason, 1927) § 9242, is not recognized by the probate code. The statute authorizing it is a part of chapter 77 on "Civil Actions" and applies only to actions and proceedings in the district court. A proceeding in the probate court is beyond its scope until by a properly perfected appeal the district court obtains jurisdiction.
2. But the probate code (G.S. 1923 [2 Mason, 1927] § 8985) does contemplate a "notice of the order, judgment, or decree" in order to limit to 30 days thereafter the time for appeal. In the absence of notice, an appeal may be taken within six months "from the entry" of order judgment or decree. The notice from the probate judge required by G.S. 1923 (2 Mason, 1927) § 8716, of the filing of any appealable order does not limit or otherwise affect the time for appeal. It is only written notice from the adverse party that can limit to 30 days thereafter the time for appeal. Timm v. Brauch, 133 Minn. 20, 157 N.W. 709. The probate code does not prescribe how that notice shall be served. In the absence of a statute authorizing service by mail, only actual receipt of the notice can limit the time for appeal. But the statute does not require personal service. "Notice of the order" is enough. Therefore, if appellants actually received the notice, however it came to them, the statute became operative. Even in the ordinary civil action in the district court where the statutory service by mail is attempted but fails for any reason and the paper has actually come to the hands of the person to be served within the time for personal service, we hold it equivalent to personal service. Van Aernam v. Winslow, 37 Minn. 514, 35 N.W. 381; In re Estate of Bridgham, 158 Minn. 467, ...
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