Starkweather v. Bell

• Decision Date: 02 September 1899
• Citation: 80 N.W. 183,12 S.D. 146
• Parties: STARKWEATHER v. BELL.
• Court: South Dakota Supreme Court

80 N.W. 183

12 S.D. 146

STARKWEATHER v. BELL.

Supreme Court of South Dakota

September 2, 1899

Appeal from circuit court, Lake county; Joseph W. Jones, Judge.

Proceeding by W. J. Bell for the probate of a will; Courtney Starkweather, contestant. From a judgment of the circuit court on appeal admitting the will to probate, contestant appeals. Reversed.

Murray & Porter, for appellant. D. D. Holdridge & Son, for respondent.

CORSON P. J.

This was a proceeding commenced in the county court of Lake county to probate the will of one Jennie M. Bell, who died in that county on January 23, 1896. The petition was presented to the county judge by W. J. Bell, husband of the deceased, and sole devisee and executor in the will. The petition was in the usual form, praying that letters testamentary be issued to the petitioner, and appraisers appointed according to the rules and practice of the county court. At the time set for the hearing of the petition, Courtney Starkweather, a half-brother of the deceased, appeared and filed a contest alleging, among other things, that the will presented by the petitioner for probate was not the last will and testament of said Jennie M. Bell, deceased; that at a time subsequent to September 6, 1892, the date of the will presented by the petitioner for probate, the said deceased, Jennie M. Bell executed a last will and testament, in due form, different in terms and provisions from the said pretended will aforesaid offered for probate, and that it expressly revoked all former wills by her made and executed. There were other grounds stated in the protest, but, as they were not pressed on the trial of the case, it will not be necessary to notice them. To this protest the petitioner, W. J. Bell, made answer denying the material allegations therein contained. Upon the issues so formed a trial was had in the county court, resulting in findings and judgment in favor of the contestant and against the defendant, rejecting the will offered for probate by the said Bell, and giving plaintiff judgment for his costs. From this judgment the said defendant, Bell, took an appeal, or attempted to take an appeal, on the 10th day of June, A. D. 1896, and on that day served upon attorneys for contestant a notice of appeal, which notice was on said day filed with J. M. Preston, clerk of the circuit court, and ex officio clerk of the county court, who thereupon placed the following filing thereon: "Filed in my office this 10th day of June, A. D. 1896. J. M. Preston, Clerk of Circuit Court, Lake County, S. D." On the same day the appellant filed with said clerk an undertaking on appeal, which was indorsed in the same manner as the notice of appeal. When the said cause came on for trial in the circuit court in September, 1896, the contestant appeared specially, and for the purpose of objecting to the jurisdiction of the court only, and asked that said appeal be dismissed for the following reasons, viz.: "(1) That the court has no jurisdiction thereof, in that no notice of appeal or bond was ever filed with the judge of the county court of Lake county as required by section 5966 of the Compiled Laws, or at all; (2) that the notice of appeal herein is fatally defective, in that it does not designate the court to which the appeal is taken; (3) that the appeal bond given herein is fatally defective, in that it is not in terms and conditions required by law, and no proper appeal bond was ever given herein." It was alleged: That at the time said motion was made the filings placed on said notice and bond by the said Preston were the only filings thereon, and there was nothing on either of the papers to indicate that they, or either of them, had been filed in said county court. That thereupon, and while said motion was being argued, the county judge of said county was permitted by the court, "without any proof," to place the following filing upon the said notice of appeal, to wit: "Filed in my office this 10th day of June, 1896. J. H. Williamson, County Judge, Lake County, S. D." And the clerk of the said court erased the word "Circuit," and inserted in lieu thereof the word "County," where the same appeared in the filing made by him thereon, and likewise upon said bond, at said time said court permitted the county judge to indorse the following filing, viz.: "Filed in my office this 10th day of June, 1896. J. H. Williamson, County Judge, Lake County, S. D." And said clerk erased the word "Circuit," and inserted "County," in the same manner as on the notice of appeal. And thereupon the motion to dismiss was denied, and the case continued over the said term. Subsequently a second motion to dismiss the appeal was made, based upon the affidavit of Oscar O. Murray. Said motion was made upon the following grounds: (1) No notice of appeal or bond herein were ever filed with the judge of the county court of Lake county, as required by section 5966, Comp. Laws; (2) that the notice of appeal herein is fatally defective in form, in that it does not designate the court to which the appeal is taken, nor the judgment nor order appealed from; (3) that the appeal bond is fatally defective in form, and is not in terms and conditions as required by law. The affidavit of Oscar O. Murray, upon which the motion was based, sets out the proceedings on the trial in the court below, and the filing of the papers by the clerk, as hereinbefore stated, and alleging that the original motion to dismiss the appeal was made before the county judge had indorsed thereon the filing hereinbefore referred to, and before the clerk of the county court had erased the word "Circuit" and inserted the word "County," as hereinbefore stated. On the hearing a counter affidavit was filed by D. D. Holdridge, stating, in effect, that the said notice of appeal and undertaking were filed in the office of the clerk of the county court on the 10th day of June, 1896, and that said clerk, through mistake and inadvertence, placed the wrong filing upon the said appeal papers, to wit, the filing of the circuit court instead of the county court, and that when said case was called for trial, on or about September 15, 1896, the plaintiff made a motion to dismiss the appeal, and that upon said motion the statement of the judge of the said county court and the clerk of the court was made in open court, that said notice of appeal and undertaking were duly filed in the office of the county judge and clerk of the county court, and the omission of the filing by the judge of the county court was by mistake and inadvertence. The second motion to dismiss was thereupon overruled, and the plaintiff duly excepted.

Section 5965 of the Compiled Laws provides: "An appeal by a party or a person who was present at a hearing, must be taken within ten days, and an appeal by a person interested and not present at the hearing, within thirty days, from the date of the judgment, decree, or order appealed from." Section 5966 provides: "The appeal must be made: (1) By filing a written notice thereof with the judge of the probate court stating the judgment, decree or order appealed from, or some specific part thereof, and whether the appeal is on a question of law, or of fact, or of both, and, if of law alone, the particular grounds upon which the party intends to rely on his appeal; and (2) by executing and filing within the time...