In re Peterson's Estate

• Decision Date: 11 January 1912
• Citation: 134 N.W. 751,22 N.D. 480
• Court: North Dakota Supreme Court

134 N.W. 751

22 N.D. 480

IN RE PETERSON'S ESTATE.

DAVIDSON v. UNKNOWN HEIRS OF PETERSON et al

Supreme Court of North Dakota

January 11, 1912

Rehearing denied February 19, 1912.

Appeal from the District Court of Benson county; Cowan, J.

Reversed and remanded.

Judgment of the district court reversed and vacated and the petition of respondents Miesen dismissed for want of merit and action remanded to the district court of Benson county judgment entered that the estate of Peterson, deceased. Appellants recovered costs and disbursements.

Scott Rex, T. H. Burke, and C. L. Lindstrom, for appellants.

Buttz & Sinness and O. D. Comstock, for respondents.

GOSS, J. BURKE and BRUCE, JJ., being disqualified, Honorable W. H. WINCHESTER, Judge of the Sixth Judicial District, sat by request.

OPINION

GOSS, J.

This action arises over the estate of Anton Emil Peterson, deceased. The appellants, Ladehol et al., claim to be blood relatives of Peterson through his mother, deceased having been an illegitimate son. Appellants all reside in Norway, and rely wholly on documentary proof of the antecedents of the deceased and of their relation to him. Deceased died intestate, unmarried, and at his death was, and for twenty years prior thereto had been, a resident of Benson county. His estate, awaiting final decree of distribution, after payment of all debts and expenses of administration, has been reduced to money and amounts to over $ 6,000, in the hands of the administrator, respondent, and subject to further order of court. The respondents Dorothea Miesen and Herman Miesen claim to be the common-law wife and son respectively of deceased. They reside in Michigan, in which state they aver such marriage occurred in 1876 or 1877. She claims to have been deserted by deceased in 1878, since which time she and Peterson have never met. She remarried in 1879 to Miesen, her present husband, to whom she has since born five children. On the presentation to the county court of Benson county of the administrator's petition for final distribution of the proceeds of the estate to the legal heirs of the deceased, joinder of issue was had between the administrator, the state acting by the state's attorney of Benson county, respondents Miesen (alleged common-law wife and son of deceased), and Ladehol and nineteen other foreign heirs appearing by guardian and attorneys in these proceedings. In the county court hearing was had on depositions; so also in district court except oral testimony as to a few matters regarding which resident witnesses could testify. The decision of the county court was adverse to these appellants, who served and filed within time the proper notice of appeal therefrom to the district court, and seasonably served and filed a bond fatally defective in parties, amount, and conditions. In the face of a motion made in district court to dismiss the appeal and affirm the judgment of the county court for want of jurisdiction of the district court because of such defective undertaking on appeal, on application of appellants the record was transmitted to the county court, with directions to permit appellants to file such new undertaking as should meet with the approval of the county court, conditioned on its return within a limited time duly certified back to the district court. Complying therewith, appellants filed a new bond on appeal, regular in all particulars and approved by the county judge and transmitted by him to the district court, where jurisdiction was assumed over objection; and trial de novo was then had, no jury having been demanded. The cause was heard as triable in equity and the record made accordingly with no testimony excluded. At the close of the case the court made its findings and conclusions, in favor of respondents Miesen for judgment dividing the estate equally between them. From this judgment appellants appeal to this court again demanding a trial de novo.

The settled statement of the case for the purposes of this appeal contains certified copies or originals of all proceedings had in the county and district courts in the litigation involved in the issue here presented. We are confronted with a motion to strike made by each party, leveled at a portion of the matter embraced in the statement as settled; that of respondents Miesen going to the question contended for by them that the trial in the district court, while a trial de novo. should have been limited to a review of the transcripted and certified record of proceedings had in the trial in the county court; the sustaining of which motion would eliminate the cross-examination of the respondents and their various witnesses from the consideration of this court on this appeal; appellants contend that the appeal on trial de novo from the county to the district court permits a retrial of the action, the resubmission of testimony, with the district court acting as a trial, instead of an appellate, tribunal.

Respondents Miesen further predicate as error the action of the district court in permitting the filing after time of the undertaking on appeal from county court, and attack the jurisdiction of this court to consider the merits of the case; urging that this court should now do what they contend the district court on appeal should have done, summarily affirm the judgment for want of the proper appeal bond on the intermediate appeal.

We will therefore first consider whether the district court acquired jurisdiction. The statute, § 7966, provides: "To effect an appeal the appellant must cause a notice of the appeal to be served on each of the other parties, and file such notice with the proofs of service, and an undertaking for appeal in the county court within thirty days from and after the date of the order or decree." Section 7968 provides: "An executor, administrator, or guardian may appeal without filing an undertaking from a decree or order made in any proceeding in a case in which he has given an official bond; and when he appeals in that manner the bond stands in place of such undertaking. A special guardian may appeal without filing an undertaking although he has not given bond." Two of the appellants appear by guardian.

Sec 7969 provides: "When the appellant seasonably and in good faith serves a notice of appeal on some of the parties, but through mistake or excusable neglect fails to obtain service on all, or in like manner omits to do any other act necessary to perfect the appeal or effect a stay, the county court upon proof of the facts by affidavit may, in its discretion, extend the time for perfecting the service or other act, and permit an amendment accordingly upon such terms as justice requires." Other sections of the statute regulate stay proceedings and the amount and obligations of the undertaking on appeal, and attempt to define some procedure applicable to an appeal from any of the various and peculiar matters necessary of determination in probate proceedings. In this case the district court in remanding to the county court acted upon affidavit filed, making proof of seasonable and good faith action, and prima facie excusing the neglect or mistake in filing the fatally deficient undertaking on appeal, provided the statute, § 7969, can be held to apply in such a case and permit such practice. It is noticeable that these statutes on probate appeals in no instance make the service and filing of a valid bond a condition precedent to the attaching of jurisdiction on appeal. We here find no provision similar to § 8502 governing appeals from justice court, that "to render an appeal effectual for any cause an undertaking must be executed on the part of the appellant," with certain conditions required by a statute manifestly mandatory. It is also noticeable that appeals in other matters than from the county court are more easy of classification, making it a more simple matter to define the conditions to be necessarily required in such appeal bonds than in the bonds that may be necessary in the various appeals granted under art. 9 of our Probate Code. The issues in probate court are many and varying. Probate procedure deals with matters of estates in which justice more imperatively demands that technicality shall not stand in the way of the descent and distribution of the estates of deceased persons, nor interfere in many other kindred matters, all within the jurisdiction of the county court. The statutes on probate appeals are many and are to be construed broadly, that they may cover the full scope of such matters embraced. Sections 7964 to 7989 constitute an endeavor on the part of the legislature to attempt to provide generally for such appeals to the end that some portion of the statute will apply to any appeal that may be taken. From the statute it is obvious that the jurisdictional requisite to an appeal is the service and filing of the notice of appeal as required, the undertaking on appeal being intended as security only, and not as a jurisdictional prerequisite. This may seem at first blush an unusual interpretation of undertakings on appeal. But such is the plain purpose of this statute. Section 7969, coming into existence as § 6259, Revised Codes of 1905, is purposely broader than the parent enactment found in § 5978 of Compiled Laws. The condition precedent to the permission of performance of other acts necessary to be done, including an amendment to the notice of appeal or filing or a new or amended undertaking, permitted under § 7969, is the seasonable and good faith service of a notice of appeal on some of the parties to the proceedings. The order under which permission was granted to file this new undertaking, based upon affidavit, finds this appeal to have been taken in good faith. If the statute be of any force, then it is to be...