229 Mass. 508 | Mass. | 1918
The Probate Court of Plymouth County entered a decree on December 11,1916, allowing the will of Denis O’Neill, from which his heirs at law claimed an appeal. Written notice of the appeal was filed seasonably in the Registry of Probate, the appeal was duly entered in the Supreme Judicial Court for the county on December 26, 1916, and a statement of objections was filed, all as required by R. L. c. 162, §§ 9 and 10.' There was evidence that the heirs at law announced their intention to appeal at the hearing in the Probate Court. The proponent of the will testified that sometime after January 18, 1917, she was told by one of her attorneys that the appeal had been entered. Under date of January 18,1917, the attorney for the heirs at law wrote the attorney for the proponent of the will enclosing “copy of motion in the matter of the appeal from allowance of will of the late Denis O’Neill, together with proposed issues for a jury,” and stating that the original was held before filing pending a reply. Both the proponent of the will and her attorney testified that no notice of the entry of the appeal had been received. There was no evidence that any written notice had been sent other than the letter of January 18, 1917.
The single justice refused to rule as matter of law that sufficient notice had been given, and to order further notice if sufficient notice had not been given, and granted a motion to dismiss the appeal. The exceptions of the heirs at law bring the case here.
It is provided by R. L. c. 162, § 11, that in a case like the present "Notice of the entry of the appeal shall be given to all parties adversely interested who shall have entered appearances in the Probate Court, and it may be served in the manner provided by the rules of court for the service of notices; but the court may order further notice to be given.” Although the practice in probate appeals follows that in equity, it is provided by Equity Rule 38 that the rules of court as to practice at common law govern the giving of notice. It is provided by Rule 30 of the Common Law Rules of the Supreme Judicial Court that “all notices . . . shall be in writing” and served personally or by mail.
It is necessary under the statute that there be “notice of the entry of the appeal.” That notice by reference to the rule of court must be in writing. The statute and rule together mean that
No such notice was given. The requirement of notice is jurisdictional unless it is waived. Daley v. Francis, 153 Mass. 8. It is not a compliance with this essential prerequisite touching notice to correspond weeks after the entry of the appeal concerning a matter which would be meaningless if no appeal had been entered.
Power is conferred by the statute upon the court to order "further notice” only after a timely original notice has been served. But no power is conferred to allow the giving of an original notice after the time for giving it has expired. Hack v. Nason, 190 Mass. 346. The case is in this respect quite different from Whitney v. Hunt-Spiller Manuf. Corp. 218 Mass. 318. Ample relief may be afforded in proper cases by application to the court under R. L. c. 162, § 13, which gives broad power where required by justice to deal with instances where substantial or formal requisites in the prosecution of appeals have been omitted. Capen v. Skinner, 139 Mass. 190.
The question of waiver and compliance by the appellee with Rule V of the common law rules does not appear to have been raised before the single justice. If they were, they involved to a large extent questions of fact which must be taken by the general finding of the single justice to have been decided adversely to the heirs at law.
There is nothing to indicate that the appellee appeared generally or did anything more than to file the motion to dismiss.
Since no such notice of the entry of the appeal as is required by law was given, there was no error in granting the motion to dismiss the appeal which was directed to the jurisdiction of the court.
Exceptions overruled.
