Von Der Heiden & Morgan v. Williams' Estate

• Decision Date: 07 December 1946
• Docket Number: 36714.
• Citation: 162 Kan. 233,175 P.2d 117
• Parties: VON DER HEIDEN & MORGAN v. WILLIAMS' ESTATE.
• Court: Kansas Supreme Court

175 P.2d 117

162 Kan. 233

VON DER HEIDEN & MORGAN v. WILLIAMS' ESTATE.

No. 36714.

Supreme Court of Kansas

December 7, 1946

Appeal from District Court, Harvey County; George L. Allison, Judge.

Appeal from District Court, Harvey County; George L. Allison, Judge.

Proceeding in the matter of the estate of Thomas Williams, deceased, on the claim of Von Der Heiden & Morgan, against the estate for attorneys' fees, opposed by Jessie B. Kemper administrator de bonis non, etc. From an order allowing the claim, administrator appeals. On appellee's motion to dismiss the appeal.

Motion denied.

Syllabus by the Court.

A copy of notice of appeal to this court, taken under the provisions of section 60-3306, G.S.1935, was sent by registered mail to adverse parties residing in this state, and the card acknowledging receipt of such notice was signed and returned to the sender. Held: Such service constituted personal service within the meaning and purpose of the statute.

Max Regier, of Newton, for appellant.

W. H Von Der Heiden and Cliff A. Morgan, both of Newton, for appellee.

HOCH, Justice.

This appeal is from an order allowing a claim for attorneys' fees against an estate. The appeal has not been heard upon its merits but is before us now upon motion of the appellees to dismiss on the ground that service of notice of the appeal was not personally served as required by the statute. G.S.1935, 60-3306.

Appellees are attorneys residing at Newton, Harvey County, Kansas, and the claim was allowed both by the probate court and upon appeal by the district court of that county, where the estate is being administered. Attorneys for the estate reside at Hutchinson and at Newton, Kansas.

The record here is somewhat incomplete but sufficient to justify our proceeding upon the theory that notice of the appeal was sent by registered mail by appellant's Newton attorney to appellees at their Newton office, with request for return receipt, and that the card acknowledging receipt of the notice was signed by appellees or by an employee acting for them and was returned to the sender. The question is whether such service complies with the requirement of section 60-3306, G.S.1935, the pertinent provisions of which read as follows:

'Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court * * *. A copy of such notice must be personally served on all adverse parties * * * or if such service cannot be made within the state, service may be made by a notice, properly addressed to such persons or their attorneys of record at their places of residence deposited in the mail, if their places of residence are known. Proof of such service shall be made by affidavit, and in case the residence of the party and his attorney is not known, an affidavit of the appellant or his attorney may be attached to the notice filed with the clerk, stating that the residence of such party and his attorney is unknown, and that the appellant is unable to ascertain the same; * * *.'

Appellees rely upon the case of Thisler v. Little, 86 Kan 787, 121 P. 1123, 1124. In that case the notice was not sent by registered...