38 Minn. 9 | Minn. | 1887
The plaintiff appealed to the district court from an order of the probate court disallowing her claim against the estate of defendant’s intestate for services rendered by her to the deceased in his life-time. The appeal was tried on its merits; but upon appeal to this court, the order of the district court was reversed, and a new trial awarded. 36 Minn. 3, (29 N. W. Rep. 588.) Upon the case being again reached for trial in the district court, but before the trial commenced, the defendant moved to dismiss the appeal, on the ground, then for the first time raised, that the district court had never acquired jurisdiction of the cause, for the reason that no appeal had ever been taken or perfected as required by law. That an appeal in such cases is governed by the provisions of Gen. St. 1878, c. 53, was decided in Auerbach v. Gloyd, 34 Minn. 500, (27 N. W. Rep. 193.) That this appeal was taken, or attempted to be taken, in due time, and that the notice of appeal and the filing and service thereof, together with the order of the probate court thereon, were all in due form, and constituted a sufficient application for an appeal under the statute, is not seriously questioned, and, indeed, could not be. The object of attack is the appeal-bond. In drawing it, the plaintiff evidently had in mind the provisions of Gen. St. 1878, c. 49. Its condition is that the appellant “shall prosecute her appeal with due diligence to a final determination, and pay all costs adjudged against her in the district court,” while the condition required by chapter'53 is that the appellant “shall prosecute his appeal with effect, and pay all damages and costs which may be awarded against him on such appeal.” In cases of this kind, if the bond substantially covers the provisions of the statute, and secures to the respondent all that the law designed for him, it is sufficient, although not in the exact words of the statute. Kasson v. Estate of Brocker, 47 Wis. 79, (1 N. W. Rep, 418;) Doolittle v. Dininny, 31 N. Y. 350; Creighton v. Harden, 10 Ohio St. 579; Bentley v. Dorcas, 11 Ohio St. 398. In the present case there is no substantial difference between the condition of the
A more substantial objection to the bond is that, although approved by the probate judge, it was executed by the plaintiff and only one surety, while the statute requires a bond with sureties. Blake v. Sherman, 12 Minn. 305, (420;) State v. Fitch, 30 Minn. 532, (16 N. W. Rep. 411.) Defendant’s contention is that, the jurisdiction of the district court in such matters being appellate, it can obtain jurisdiction of the subject-matter only by an appeal perfected in the manner provided by law; that, unless all the requirements of the statute in every particular are pursued with exactness, no jurisdiction is conferred upon the appellate court. There are cases that hold thus strictly, but such a doctrine is technical in the extreme, and is characterized with a degree of illiberality which does not. obtain anywhere else in the practice in civil actions, and is not in accordance with the maxim that appeals from inferior tribunals are favored in law. It is undoubtedly true (and most of the cases cited by defendant only go that far) that jurisdiction cannot be conferred, even by consent, on courts, over a subject-matter on which the law does not confer it, as, for example, on a justice of the peace over a case involving the title to real ©state. But it is quite another thing to hold that every irregularity or defect in matters intended solely for the benefit of the respondent, such as the appeal-bond, goes to the jurisdiction of the court over the subject-matter. It seems uncontested that, when the original jurisdiction of a court is invoked over a subject-matter within such jurisdiction, it should have power, in furtherance of justice, to amend any process, pleading, or proceeding, and yet, when its appellate jurisdiction is invoked under like circumstances, it should have no such power in any case. It is unnecessary here to determine just what defects or irregularities in appeal proceedings are jurisdictional, and
In the present case, the defendant having once gone to trial in the district court on the merits, and afterwards argued the appeal in this court, without raising any objection to the bond, the district court might well hold that he had waived the defect, and for that reason denied his motion to dismiss the appeal.
Order affirmed.
Collins, J., having tried the case in the court below, tools no part in this decision.