Donovan's Appeal from Probate

| Conn. | Apr 15, 1873

Carpenter, J.

This appeal is from the decision of commissioners on an insolvent estate. The court of probate caused no notice to be given to the adverse party. The appeal was returned to the September term, 1871, and, at the.May term following, the Superior Court issued an order of notice, which appears to have been duly served upon the appellee. The appellee appeared and filed a plea to the jurisdiction. His claim seems to bo this; that the Superior Court acquired no jurisdiction by the appeal, inasmuch as no notice was served upon him at the time.

There is a material difference in this respect- between the appellate jurisdiction of the Superior Court and original jurisdiction. In respect to the latter, the statute is imperative, that the declaration or petition, as the case may be, shall be accompanied with a summons, which shall be duly-served on the adverse party at least twelve days before the session of the court. Such notice, unless waived, is essential to give the court jurisdiction. It is otherwise in appealed cases. In ordinary actions, appealed from inferior courts, all parties interested are supposed to be in court when the appeal is taken, and are bound to take notice thereof; consequently no formal notice is required. Proceedings before tlie court of probate are of a less formal character. Sometimes all parties interested are present, but more frequently some of them are absent. The appeal may be taken at the time judgment is rendered, or it may be taken subsequently. In either case the statute provides that the court of probate shall cause such reasonable notice to be given to parties interested as may be deemed proper, but such notice is not essential to give the appellate court jurisdiction of the cause. The provision requiring notice is in an independent, section of the statute, relates to the duties of the court of prohate and not of the appellant, and is merely directory. The provision allowing an appeal confers upon the party aggrieved. an absolute right of which he cannot be deprived by any omission of the court of probate. When the appeal is properly taken and allowed, the jurisdiction of- the Superior Court over the cause attaches. That jurisdiction cannot be defeated by the neglect of the court of probate to issue an.order of notice. But the Superior Court will not proceed with the cause until the appellee has had notice of the appeal. If it does not appear that he has had notice, the court will cause notice to be given before proceeding to trial and judgment. That course was taken in this case.

The plea to the jurisdiction is insufficient, and we advise the Superior Court to over-rule it.

In this opinion the other judges concurred.