McIntyre's Estate, In re, 7202

• Decision Date: 13 April 1951
• Docket Number: No. 7202,7202
• Citation: 78 N.D. 10,47 N.W.2d 527
• Parties: In re McINTYRE'S ESTATE. WEISS et al. v. STORMON et al.
• Court: North Dakota Supreme Court

Page 527

47 N.W.2d 527

78 N.D. 10

In re McINTYRE'S ESTATE.

WEISS et al. v. STORMON et al.

No. 7202.

Supreme Court of North Dakota.

April 13, 1951.

Syllabus by the Court.

1. Notice of appeal from a judgment of the county court admitting a will to probate may be served by publication as prescribed by Section 30-0210, 1949 Supp. to NDRC 1943 upon a respondent on such appeal resding outside the county wherein the proceeding for the probate of the will was had and the judgment was rendered.

2. Where a general appeal has been taken to the district court from a judgment of the county court admitting a will to probate and thus all issues are triable anew in the district court as provided by NDRC 1943, 30-2623, and the proponent of the will who petitioned for the probate of the will recognizes the case as being in the district court, enters into a stipulation in the district court providing for the examination by counsel for the appellee, the proponent of the will, and counsel for the contestants of books, documents, papers and correspondence belonging to the deceased, in the hands of the designated party 'that the said counsel may determine by selection, therefrom, any items pertinent to the issues involved in the trial of contest of will herein'; and later participates in the proceedings, had for the selection and impaneling of a trial jury he cannot be heard to say after the jury has been impeneled and sworn to try the case that the court has no jurisdiction to try and determine the case because he was not served with legal and valid notice of appeal.

3. Where a general appeal is taken to the district court from a judgment of the county court admitting a will to probate a general appearance by the appellee confers jurisdiction of his person and he is thereafter precluded from asserting that the court is without jurisdiction because of alleged defects in the service of notice of appeal.

C. A. Waldron, Bruce M. Van Sickle, Minot (John Arneson and Robert Elliott, Jr., Minneapolis, Minn., of counsel), for appellants.

Clyde Duffy, Devils Lake, Roland A. Heringer, Rugby, J. Howard Stormon, Rolla, for appellee.

PER CURIAM.

This is an appeal from a judgment of the District Court of Pierce County dismissing an appeal from the County Court of Pierce County in a proceeding for the probate of the last will and testament of Ethol G. McIntyre, deceased. The petition for proof and probate of the last will and testament of Ethol G. McIntyre was filed in the County Court of Pierce County in this state on July 19, 1948. The county court issued its citation hearing petition for proof and probate of will returnable at 2 o'clock P.M. on August 10, 1948. The citation was duly served on the respondents in the proceeding and on the return day there appeared in court the petitioner, John A. Stormon, and one of his attorneys, Harold B. Nelson, and Bruce M. Van Sickle one of the attorneys for respondents in the proceeding. The petitioner thereupon offered proof as to the execution of the last will and testament of the deceased Ethol G. McIntyre and the required jurisdictional facts showing that the said Ethol G. McIntyre at the time of her death was a resident of Pierce County, North Dakota, and owned real and personal property in said county. The attorney for respondents in the proceeding in county court requested time within which to file an answer and objections to the probate of the will. The court thereupon granted the request extending the time until August 26, 1948, to file answer and to serve the same upon the other parties interested in the estate. On August 26, 1948, the contestants filed their answer and objections to the probate of the will and served copies thereof on the attorneys of record for the petitioner. No other service of any kind was made upon the petitioner, and no service was made upon any of the other parties to the proceeding. On October 5, 1948, during the trial in the county court some of the contestants filed an amended answer and amended objections to proof and probate of the will and copies thereof were served upon the attorney for the petitioner in open court. No other service of such amended answer and objections was made and the trial continued. On November 18, 1948, the county court rendered its decision admitting the last will and testament of Ethol G. McIntyre to probate and appointed John A. Stormon as executor thereof pursuant to the terms of the will and on such date the county court made its findings of fact and conclusions of law and order admitting the will to probate. On November 29, 1948, notice of appeal to the district court from the order of the county court admitting the last will and testament of Ethol G. McIntyre was filed in the County Court of Pierce County, North Dakota, on behalf of the contestants. In such notice of appeal the contestants demanded a trial anew of the entire case upon its merits in the district court. On that same day the notice of appeal was served upon the attorney of record for the petitioner, John A. Stormon, as shown by the admission of service on the notice. The notice of appeal was also served upon the petitioner John A. Stormon and on the respondents in the proceeding in county court, including the contestants, by publication in the Pierce County Tribune, a weekly newspaper in Pierce County, for the period prescribed by law and there was also mailed to the petitioner, John A. Stormon, and to all the parties to the proceeding a copy of the notice of appeal as published in the said newspaper. Such mailing was made in the manner and within the time prescribed by Section 30-0210, 1949 Supp. to NDRC 1943.

On December 10, 1948, the attorneys for the contestants and the attorneys for the petitioner entered into the following written stipulation:

'State of North Dakota

County of Pierce

In District Court Second Judicial District

'Catherine Weiss, Ada J. Hong, Ina, Nerison, Gladys Mulcahy, Mark Mundy, Robert J. Mundy, and Marion Elgren, Appellants

v.

'John A. Stormon, Petitioner Appellee and

Charles A. Rosscup, Eva M. Stormon, Fred Rosscup, Francis Rosscup, Elmer Rosscup, Kenneth Rosscup, and Norinne Evenstad, and every other person who has or claims a right or interest herein. Respondents

Stipulation.

'Motion to produce records having been noticed herein for the 8th day of December, 1948, and the same having been heard, by the Court, the Hon. J. J. Kehoe, judge, presiding, at the opening of the term for December, at Rugby, North Dakota; and the court having suggested in the presence of all interested attorneys that a stipulation be prepared and executed, covering such items as were desired for examination, which items were under the custody and control of the curator of the estate of Ethol G. McIntyre, in Miami, Fla., or subject to his securing, by reason of being the personal property of said decedent; Now therefore, it is hereby stipulated between the attorneys for the respective parties, as follows:

'That all books, documents, papers and correspondence belonging to Ethol G. McIntyre, and in the hands of the Curator, Julian B. Frix of Miami, Fla., or under his control, or subject to procurement by him, as curator, may be examined by designated counsel for contestants and designated counsel for John A. Stormon; that the said counsel may determine by selection, therefrom, any items pertinent to the issues involved in the trial of contest of will hearin;

'That said counsel shall join in an application to have all items selected by either attorney, forwarded by the Judge of the Probate Court of Dade Co. Fla. Hon. W. F. Blanton, to the Clerk of the District Court, Pierce County, Rugby, North Dakota;

'That counsel for the respective parties shall act with promptness and dispatch, in securing and examining and requesting the forwarding of said data so it may be received, by Dec. 29th 1948.

'Dated Dec. 10th 1948.

'C. A. Waldron and Bruce Van Sickle attorneys for contestants Minot N. D.

J. Howard Stormon

Nelson & Heringer, attorneys for petitioner-appellee, Rugby, North Dakota

Sinness & Duffy, Devils Lake, N. D.

by Harold B. Nelson' On January 18, 1949, the case came on for trial to a jury in the District Court of Pierce County with the Honorable W. H. Hutchinson, District Judge, presiding, upon the written request of Honorable J. J. Kehoe, District Judge of the Second Judicial District. After the jury had been impaneled and sworn to try the case and before any evidence had been introduced the attorney of record for the petitioner made the following objection to jurisdiction:

'At this time, may it please the Court, the jury in this matter having been sworn to try the proceedings before the Court at this time, the petitioner objects to the jurisdiction of this court to hear, try or determine any of the issues involved in this proceeding on the following grounds:

'1st. That pursuant to Section 30-0602 of the North Dakota Revised Codes for 1943, in order to initiate the contest of a will it is requisite that the grounds of opposition to the probate thereof be served on the petitioner and a copy be served on each other party interested in the estate by mail. No copy of the answer and objections as originally filed and which are dated August 24, 1948, nor the amended objections filed in the county court and which are dated October 4, 1948, were ever served in any manner whatsoever upon the following respondents: Charles A. Rosscup, Eva M. Stormon, Fred W. Rosscup, Francis Rosscup, Elmer Rosscup, Kenneth Rosscup, and Norinne Evanstad; the persons named being nieces and nephews of the decedent and as such are parties interested in the outcome of this proceeding.

'2d. The petitioner further objects to the jurisdiction of this court to hear, try or determine any of the issues involved herein on the ground and for the reason that there was never any notice of appeal from the order of the county court admitting the will in question to probate served in the...