107 Me. 274 | Me. | 1910
May 25, 1909 the judge of probate for Lincoln County made a decree allowing a certain instrument as the will of Adelia R. Sproul, deceased. On the same day, after the decree was made, Benj. E. Sproul, an heir of Adelia, claimed an appeal and filed reasons of appeal and the bond required by the statute. No service of the reasons of appeal was made upon any other party, nor was the appeal entered at the term of the Supreme Court of Probate at which it was cognizable, viz., the Lincoln County October term 1909. On the last day of that term, on complaint of the appellee, under R. S., ch. 65, sec. 81, that the appellant had failed to enter and prosecute his appeal, the presiding Justice affirmed the decree of the probate court. This action, however, was without any notice to the appellant.
Later, in December, 1909, being in vacation and within a year from the date of the decree, Mr. Sproul presented to a Justice of this court a petition under R. S., ch. 65, sec. 30, for leave to enter and prosecute an appeal from that decree, and requested an order of notice thereon. The Justice made thereon an order in vacation for service of notice returnable at the next term in Lincoln County. This order was seasonably and duly complied with.
On the first day of the return term, the respondent filed a motion to dismiss the petition for reasons stated in his motion. The presiding Justice overruled the motion and after hearing granted the petition. The respondent had various exceptions which are now to be considered.
The petition in this case was an original petition. It initiated a proceeding in court. We have no doubt it is a civil proceeding within the purview of the statute, and in the absence of any other statute specifically directing how notice of it should be given, notice may be ordered by a Justice in vacation under the statute in question.
It follows that the decree allowing an appeal must stand,
Exceptions overruled.