37 N.W.2d 538 | Minn. | 1949
On April 4, 1949, the attorney for Robert Gelin, appellant, served a notice of appeal on the attorney for respondent. There was at that time no notice of a bond or notice of deposit attached to this notice of appeal. No other notice of bond or deposit was served until May 4, 1949, on the attorney for respondent, who had not waived a notice or right to have a copy of such bond served.
Counsel for appellant, by affidavit, stated that he had served a true and correct copy of the appeal bond on respondent's counsel, but through inadvertence and mistake failed to serve a notice of bond at the same time as notice of appeal. The notice of appeal bond was served on May 4, 1949, as soon as the defect was discovered.
The question is whether the service of notice of the bond one month after the notice of appeal could cure a defect in failing to serve a copy of the bond at the time of service of notice of appeal, as required by §
Respondent relies on §
"The bonds in the several cases of appeals provided for in sections
Respondent emphasizes that the words "shall be served on the adverse party with the notice of appeal," should be construed as mandatory, relying on the concurring opinion in In re Estate of Van Sloun,
It is well settled that service of the bond on appeal is not jurisdictional in the case of appeals to this court. Failure to serve the bond is a mere "irregularity." Barrett v. Smith,
In the instant case no prejudice is shown to respondent by the affidavit of counsel nor in his briefs. The fact that parties in other actions may be compelled to travel long distances to find out whether an appeal bond had been filed cannot control this case. The notice of appeal bond was sent to respondent's counsel as soon as the mistake was discovered, so appellant has acted in apparent good faith. The defect is cured. Appellant will not be denied appeal on nonjurisdictional defects in the absence of a clear showing of bad faith or prejudice to the opposing party. §
The motion to dismiss is denied.