37 N.W.2d 742 | Minn. | 1949
In the meantime, Nettie changed her residence from Goodhue county to Dodge county. Eight days after filing the decision in the above case, the probate court of Dodge county, upon Nettie's petition, appointed C.L. Willyard general guardian of the estate of Nettie Hudson, and the proceedings were removed thereafter by order of the probate court of Goodhue county to Dodge county. The order of removal was appealed to the district court and reversed as to the special guardianship, which was remanded back to Goodhue county for settlement and allowance of the special guardian's account. The district court order was dated August 20, 1946. On December 12, 1945, the special guardian filed with the probate court of Goodhue county a supplemental final account covering expenses incurred after the appointment of the general guardian. The probate court declined to consider any expenses of the special guardian's account incurred after the appointment of the general guardian, and this order was appealed to the district court and affirmed. On appeal to this court, we reversed by decision filed July 16, 1948. In re Guardianship of Hudson,
While the appeal in the last-mentioned case was pending, C.L. Willyard filed his final account as general guardian of the Nettie Hudson estate in the probate court of Dodge county. On January 8, 1948, the probate court made an order allowing the account, in which the court found that there were no assets remaining in the estate. An appeal from this order was taken to the district court by Cecelia Peterson, daughter of Nettie Hudson, and by W.T. Corwin as special guardian. In attempting to comply with our statute respecting an appeal from probate to district court, a cash bond in the sum of $250 was filed, which was approved by the probate court.
The general guardian appeared specially on April 5, 1948, and moved the court to dismiss the appeal on the following grounds:
"1. That the above named District Court does not have jurisdiction therein.
"2. That the said purported appeal is invalid and of no force or effect, whatsoever."
On the hearing of this motion, the daughter and special guardian appeared by their attorney and orally moved the court that if the bond they had filed was found to be insufficient they be given leave to file another bond. The district court granted the motion to dismiss, without indicating the basis therefor, and denied the motion for leave to file a proper bond. The appeal now before us is from this order of the district court.
The main question presented by the briefs is whether the court abused its discretion in not permitting appellants to file a proper bond in the event the bond which they had filed was found to be insufficient.
1. Prior to the adoption of the amendment to our probate code by L. 1937, c. 435, we held that service on the appellee of the required bond on appeal from probate to district court was jurisdictional. In re Estate of Van Sloun,
No showing has been made in this case of any prejudice to anyone if the court had permitted the filing of a proper bond. It appears that failure to file a sufficient bond was due to a mistake as to the nature of the bond required. Appellants did file a cash bond in the required amount, which in all probability would have served the purpose equally as well as the bond required by statute. Technically, it may not have complied with our statute, but it does show an attempt to comply, even to the extent of having the approval of the probate court. We believe that it was an abuse of discretion to deny appellants' request for permission to file a sufficient bond.
2. Respondent contends that the authority of the special guardian terminated with the appointment of a general guardian and that thereafter the special guardian had no authority to appeal from an order allowing the final account of the general guardian.
In the first appeal in this matter, In re Guardianship of Hudson,
3. Respondent further contends that inasmuch as no objection to any item of the account was filed in the probate court the district court properly dismissed the appeal from the order allowing the account. An aggrieved party may appeal to the district court even though he made no appearance in probate court and even though he takes a different position in district court from that taken in the probate court. In re Estate of Langer,
4. On appeal, the case is tried de novo in district court. The district court would not be justified in dismissing an appeal on the ground that appellants took a different position in district court from that taken in the probate court, nor even if appellants did not appear in the probate court at all.
Reversed with instructions to permit appellant to file proper appeal bond.