In re Mikkelson's Estate

• Decision Date: 13 December 1929
• Docket Number: No. 27397.,27397.
• Parties: In re MIKKELSON'S ESTATE. AMUNDSON v. ARNDT et al.
• Court: Minnesota Supreme Court

228 N.W. 174

178 Minn. 601

In re MIKKELSON'S ESTATE.

AMUNDSON v. ARNDT et al.

No. 27397.

Supreme Court of Minnesota.

December 13, 1929.

Appeal from District Court, Faribault County; Julius Haycraft, Judge.

Proceeding for the administration of the estate of Christ Mikkelson, deceased. From an order dismissing an appeal from the probate court because of a defect in the notice of appeal, Mary Arndt and others, opposed by Julius J. Amundson, administrator, appeal. Affirmed.

John J. Keefe and William H. Fallon, both of St. Paul, for appellants.

Frundt & Morse, of Blue Earth, for respondent.

STONE, J.

Appeal from an order of the district court dismissing an appeal from the probate court because of defects in the notice of appeal. Its caption laid the venue of the proceeding in the probate court for the county of Blue Earth instead of the county of Faribault, where it was actually pending. It was directed properly to the administrator of the estate and to his attorneys, and gave notice that the appellants were appealing "from the decree of the above named probate court (in the caption indicated to be the probate court of Blue Earth county) * * * which said decree assigned the estate of the above named deceased" to the persons named therein.

1. The statute, Gen. St. 1923, § 8985, is that no appeal from the probate court "shall be effectual for any purpose" without the service of a notice of appeal, which "shall specify the order, judgment, or decree, or such part thereof as is appealed from." In other words, what is required is a notice which in and of itself, without extraneous aid, identifies the order, judgment, or decree from which the appeal is attempted. In this case the notice fails in that essential. Its only reference is to a decree of the probate court of Blue Earth county made in the proceedings for the administration of the estate of Christ Mikkelson, deceased. There was no such decree and no such proceeding in the probate court of Blue Earth county. It avails nothing that the parties interested, including their attorneys, knew what decree was sought to be reviewed or that extraneous evidence would easily and conclusively identify that decree. It is immaterial that no one was misled. Jurisdiction of the appeal could not be conferred by facts extraneous to the record. The notice itself did not, as required by the statute, "specify" or identify the decree. "A notice thus wholly defective in respect to the identification of the subject-matter of the appeal is ineffectual for any purpose. It cannot be helped by proof of any extrinsic facts showing the intention of the party, nor can the defect be cured by amendment, after the time for bringing the appeal has expired." Pettingill v. Donnelly, 27 Minn. 332, 7 N. W. 360. The notice there involved was one of an appeal from the justice court to the district court. But the same rule must apply here, for the timely service of a notice complying with the statute is jurisdictional. See, also, Dixon v. Watson, 41 Tex. Civ. App. 266, 91 S. W. 618; 3 C. J. 1086.

2. Gen. St. 1923, § 9243, provides that "a notice or other paper shall be effectual though the title of the action be omitted, or it be otherwise defective as to the designation of the court or the parties, if it intelligibly refers to the action or proceeding. In furtherance of justice, the court, on proper terms, may permit any other defect or error...