280 N.W. 652 | Minn. | 1938
Because of appellant's failure to make timely service and filing of the bond on her appeal from the probate court, that appeal was dismissed in the district court. If that order went on the sole ground that service and filing of the bond remained jurisdictional under the rule of Van Sloun v. DuToit,
There are statements in the briefs indicating that on the hearing of respondent's motion to dismiss appellant orally moved to be relieved from her failure in due time to file and serve her appeal bond, but the record reflects no such motion. It shows no application by appellant, with or without a showing of merit, formal or otherwise, for an exercise of the discretion permitted if not required by the 1937 law. Appellant, therefore, is in no position to assign error because of the alleged failure of the court to exercise such discretion. *195
The order discharging Mr. Mitchell as administrator, which followed the one settling his account, is not appealable under § 164 of the probate code (3 Mason Minn. St. 1938 Supp. § 8992-164). Hence the attempt to appeal therefrom was a nullity and the order dismissing it the only one to be made. But does it follow, as respondent argues, that the order discharging him must remain in effect whatever happens to the order settling his account? Would that order remain in force for any purpose if the order settling the account were annulled on appeal?
The order is affirmed.