47 N.W.2d 527 | N.D. | 1951
This is an appeal from a judgment of the District Court of Pierce County dismissing an appeal from the County Court of Pierce County in a proceeding for the probate of the last will and testament of Ethol Gr. McIntyre, deceased. The petition for proof and probate of the last will and testament of Ethol Gr. McIntyre was filed in the County Court of Pierce County in this state on July 19, 1948. The county court issued its citation hearing petition for proof and probate of will returnable at 2 o’clock P. M. on August 10,1948. The citation was duly served on the respondents in the proceeding and on the return day there appeared in court the petitioner, John A. Stormon, and one of his attorneys, Harold B. Nelson, and Bruce M. Van Sickle one of the attorneys for respondents in the proceeding. The petitioner thereupon offered proof as to the execution of the last will and testament of the deceased Ethol Gr. McIntyre and the required jurisdictional facts showing that the said
On December 10, 1948, the attorneys for the contestants and the attorneys for the petitioner entered into the following written stipulation:
“STATE OE NORTH DAKOTA IN DISTRICT COURT COUNTY OF PIERCE SECOND JUDICIAL DISTRICT CATHERINE WEISS, ADA J. HONG, INA NERISON, GLADYS MULCAHY, MARK MUNDY, ROBERT J. MUNDY, and MARION ELGREN, APPELLANTS V JOHN A. STORMON, PETITIONER APPELLEE AND STIPULATION. CHARLES A. ROSSCUP, EVA M. STORMON, FRED ROSSCUP, FRANCIS ROSSCUP, ELMER ROSSCUP, KENNETH ROSSCUP, AND NORINNE EVENSTAD, and every other person who has or claims a right or interest herein. RESPONDENTS
“Motion to produce records having been noticed herein for the 8th day of December, 1948, and the same having been heard, by the Court, the Hon. J. J. Kehoe, Judge, presiding, at the opening of the term for December, at Rugby, North Dakota; and the court having suggested in the presence of all interested attorneys that a stipulation be prepared and executed, covering such items as were desired for examination, which items were under the custody and control of the curator of the estate of Ethol G. McIntyre, in Miami, Fla., or subject to his securing, by reason of being the personal property of said decedent; Now therefore, it is hereby stipulated between the attorneys for the respective parties, as follows:
“That all books, documents, papers and correspondence belonging to Ethol G. McIntyre, and in the hands of the Curator, Julian B. Frix of Miami, Fla.,, or'under his control, or subject,*17 to procurement "by Mm, as curator, may "be examined by designated counsel for contestants and designated counsel for John A. Stormon; that the said counsel may determine by selection, therefrom, any items pertinent to the issues involved in the trial of contest of will herein;
“That said counsel shall join in an application to have all items selected by either attorney, forwarded by the Judge of the Probate Court of Dade Co. Pla. Hon. "W. P. Blanton, to the Clerk of the District Court, Pierce County, Rugby, North Dakota.
“That counsel for the respective parties shall act with promptness and dispatch, in securing and examining and requesting the forwarding of said data so it may be received, by Dec. 29th 1948.
Dated Dec. 10th 1948.
C. A. "Waldron and Bruce Yan Sickle attorneys for contestants Minot N. D. J. Howard Stormon Nelson & Heringer, attorneys for peti- ■ tioner-appellee, Rugby, North Dakota Sinness & Duffy, Devils Lake, N. D. by Harold B. Nelson”
On January 18, 1949, the case came on for trial to a jury in the District Court of Pierce County with the Honorable W. H. Hutchinson, District Judge, presiding, upon the written request of Honorable J. J. Kehoe, District Judge of the Second Judicial District. After the jury had been impaneled and sworn to try the case and before any evidence had been introduced the attorney of record for the petitioner made the following objection to jurisdiction:
“At this time, may it please the Court, the jury in this matter having been sworn to try the proceedings before the Court at this time,, the petitioner objects to the jurisdiction of this court to hear, try. or ‘.determine any of the issues involved in this proceeding on the following grounds:
“1st. That pursuant to Section 30-0602 of the North Dakota.*18 Revised Codes for 1943, in order to initiate the contest of a will it is requisite that the grounds of opposition to the probate thereof be served on the petitioner and a copy be served on each other party interested in the estate by mail. No copy of the answer and objections as originally filed and which are dated August 24, 1948, nor the amended objections filed in the county court and which are dated October 4, 1948, were ever served in any manner whatsoever upon the following respondents : Charles A. Rosscup, Eva M. Stormon, Fred W. Rosscup, Francis Rosscup, Elmer Rosscup, Kenneth Rosscup, and Norinne Evanstad; the persons named being nieces and nephews of the decedent and as such are parties interested in the outcome of this proceeding.
“2d. The petitioner further objects to the jurisdiction of this court to hear, try or determine any of the issues involved herein on the ground and for the reason that there was never any notice of appeal from the order of the county court admitting the will in question to probate served in the manner provided by law, in this, that the only service of the notice of appeal upon the persons named above and the petitioner was service by ordinary mail, which is not sufficient under the statute and is not a compliance therewith, the requirement of the statute being that the service be service of the notice of appeal, where made by mail, be made by registered mail; the proof of service of the notice of appeal failing to show that there was any service by registered mail upon any of the persons named herein.
“I will add a third ground, that there was never any legal service of the notice of appeal upon the petitioner, the only service as to the petitioner being service on his attorneys and by ordinary mail.”
The record does not disclose that any ruling was made on the objections, but in a memorandum decision the trial court stated that at the time such objections were jnade the court informed the attorneys for the contestants that he would give due consideration to any motions the contestants felt obliged to make for the purpose of correcting the defects pointed out
At the close of contestants’ case petitioner’s counsel moved for a directed verdict sustaining the validity of the will on the ground that the evidence before the court shows conclusively that the will was properly executed and witnessed and in all respects in conformity to the law; that the evidence conclusively shows that at the time of the execution of the will the testatrix was of sound mind and entirely competent to make a will; that evidence shows that she was not under any undue influence; “that the. will was her own free act and deed”; that she lived for seven years after the execution of the will and never revoked the will or indicated any dissatisfaction with the execution thereof but on the contrary repeatedly stated that she had made a will and had instructed her sister to notify John A. Stormon, the executor, in the event of her death, and in other ways confirmed her act in executing her will. The court denied the motion. Counsel for the petitioner then moved for a dismissal of the appeal on the grounds urged in the objections to jurisdiction and upon the further ground that the contestants had wholly failed to establish any grounds for rejecting the will having neither shown incompetence on the part of the testatrix, nor any undue influence, nor any other fact which would interfere with the validity of the will. The motion was denied. Thereafter the petitioner through his attorneys presented his evidence. At the close of all the evidence petitioner’s counsel renewed the motion for a directed verdict and upon denial of such motion renewed the motion for a dismissal of the appeal. Such motion was denied and the case submitted to the jury. The jury was unable to agree upon a verdict and was thereupon discharged. Thereafter the petitioner, John A. Stormon, moved for judgment notwithstanding the disagreement of the jury. The court entered an order denying the motion but permitting the petitioner to present any of the jurisdictional questions involved in the proceeding by proper motion either before another trial or during the course of such trial. Thereafter, in accordance with the provisions of the court’s order, the petitioner Stormon filed a motion for dismissal of the contest and appeal,
“Two questions for decision are presented by this motion. The first question is: Does this court have jurisdiction to hear and determine the issues involved for the reason that the answer and objections and amended answer and objections to the petition for proof and probate of will were never served upon the respondents and all interested parties in the Estate of Ethol Gr. McIntyre, Deceased, as required by law? It appears to be a fact that the original answer and objections filed by the contestants were never served except upon the attorneys for John A. Stormon, Petitioner. It is also a fact that the amended answer and objections were served only upon the attorneys for the petitioner John A. Stormon. However, the parties, including this petitioner, proceeded to trial in the County Court under the pleadings as filed by the contestants. It does not appear that the petitioner made any proper objection in the County Court to proceeding in the trial there for the reason that the pleadings were not served in accordance with the requirement of statute. At the time of the trial of the will contest in county court the County Court had jurisdiction of all the parties by reason of the citation served in the matter of the presentation of the will for probate. The parties having proceeded to trial and judgment having been made and entered by the County Court admitting the will to probate, the petitioner is not now in a position in this court to question the service of the pleadings made in the county court. This court is therefore of. the opinion that Point No. 1 made by the petitioner upon his motion is not well taken and cannot be sustained.
“We now come to the second question raised by the petitioner in his motion, and that question might be stated as follows: Does the Court have the jurisdiction to hear and determine the issues on this appeal from the county court to the district court for the reason that the contestants and appellants neglected to serve the notice of appeal upon the petitioner John A. Stormon .and upon all other respondents as required by law? Th§ fact*21 is that this notice of appeal was never served upon the petitioner and the respondents by registered mail. The petitioner and respondents were not residents of Pierce County, North Dakota. A careful study of our statutes and the interpretation thereof as made by our Supreme Court in the recent decision, In re Bratcher’s Estate, 3á NW2d 825, leads the Court to the conclusion that the statute requires in case of an appeal from county court to district court that service of the notice of appeal be made by registered mail. The proper service of notice of appeal is jurisdictional. If an appeal is to be properly perfected the statute must be complied with. The petitioner made proper objection before the trial of this action upon appeal. Upon the authority, therefore, of the case In re Bratcher’s Estate as above cited, "'this court is of the opinion that the contestants have failed to serve their notice of appeal as required by law, and that therefore this court is without jurisdiction to hear such appeal, and the Court must grant the motion of the petitioner dismissing the appeal.”
The trial court made an order in conformity with the views expressed in the memorandum opinion that the appeal of the contestants from the county court be dismissed' and that judgment be entered accordingly. Thereupon judgment was entered dismissing the appeal, and the contestants have appealed from such judgment.
It will be noticed that the trial court held that the first ground stated in the objections to jurisdiction and in the motion to dismiss the appeal could not be sustained. We agree with such determination of the trial court. The alleged defect there' asserted related to proceedings had in the county court, and as pointed out by the trial court it does not appear that any objection was made in the county court and that court heard the parties and tried the questions in controversy between the parties on their merits. Upon the trial in the county court the parties had available for use and used the answer and objections that had been filed by the contestants. The fact that the answer and objections had not been served prior to the hearing in the county court did not affect the jurisdiction of the district court on appeal from the decision of the county court.
The contention that the notice of appeal was served in a manner provided by law requires a consideration of the laws of this state relating to service of such notice.
Chapter 30-26, NDRC 1943, relates to appeals from the county court to the district court. Such statute provides:
“Any party to a proceeding in county court, . . . who deems himself aggrieved by a decree or any order affecting a substantial right made by a county court, may appeal to the district court of the same county.” NDRC 1943, 30-2601.
“Each person who was a party to a proceeding in the county court, and each other person who has or claims in the subject matter of a decree or order made by the court a right or interest which is affected by an appeal, must be made a party to the appeal.” NDRC 1943, 30-2602.
“To effect an appeal, the appellant must cause a notice of the appeal to be served on each of the other parties and must file such notice with the proofs of service, and an undertaking for appeal, in the county court, within thirty days from and after the date of the order or decree. If the party taking an appeal files such notice and announces the filing orally in open court at the time the decision is given, no other or further service of the notice is necessary.” NDRC 1943, 30-2603.
Said Chapter 30-26, NDRC 1943, however, does not specify the manner of service of notice of appeal on an appeal from the county court to the district court and it becomes necessary to look elsewhere in the code relating to judicial procedure in probate (NDRC 1943, Title 30) to ascertain what provision is made for such service. Such code provides as follows:
“Except as otherwise provided in section 30-0211, a citation in county court must be served personally upon each respondent*23 who resides'within the county in which the proceeding is pending. Such service shall be made at least ten days before the day fixed for the hearing, in the manner prescribed for the service of a summons by the title Judicial Procedure, Civil. Personal service may be made in like manner upon any respondent residing within the state outside the county, and upon any person residing outside the state.” NDRC 1943, 30-0209.
“A citation in county court may be served by publication upon a respondent residing outside the county whether residing within or without the state, but service by publication upon any such party shall not be necessary if he has been served personally in the manner prescribed by Section 30-0209. Such service by publication shall be made by publishing the citation once each week, for two successive weeks, in some newspaper printed in the county, if theró is one, and if none is printed in the county, then a newspaper printed in an adjoining county in the state. Service shall be deemed complete with the last publication. Ten days shall elapse thereafter before the day of hearing. In case of service by publication, the petitioner or his attorney, at least ten days prior to the date of hearing, shall cause to be mailed to each respondent whose address is known, a copy of the citation published. An affidavit of mailing shall be sufficient proof of such mailing. No defect in any notice, nor in the publication or ■ service thereof, shall invalidate any proceedings.” 1949 Supp. to NDRC 1943, 30-0210.
“A citation upon a petition for letters of administration, letters testamentary,. letters of administration with the will annexed, probate of foreign will, á decree establishing heirship, and letters of guardianship must be served as provided in sections 30-0209 and 30-0210. Service of every other citation required to be made by this.title may be made by mailing a copy thereof, postage prepaid, at least'- fifteen days before the day fixed therein for hearing, to each of the respondents by registered mail. The filing of an affidavit of mailing shall be prima facie proof of service upon the party to whom such citation was mailed.” NDRC 1943, 30-0211.
The section ' immediately following .the foregoing, sections reads as follows: “All citations, notices, and papers of.every
It will be noted that NDRC 1943 sections 30-0209, 30-0210, and 30-0211 provide for three modes of service of citations in county court, namely, (1) by personal service (30-0209), (2) by publication, (30-0210), and (3) by mail (30-0211) and that Sec. 30-0212 which immediately follows makes these sections and the mode of service prescribed thereby applicable as well to service of notices as to citations. These are the only statutory provisions that could apply to service of notice of appeal on an appeal from the county court to the district court.
In Eberlein v. Bratcher, 76 ND 194, 34 NW2d 825, this court had occasion to consider the service of notice of appeal on appeal from the county court to the district court in a will contest. In that case this court held that under these statutory provisions notice of appeal from county court to the district court must be served upon the parties themselves and that service of a notice of appeal on an attorney of record was insufficient. In paragraph 1 of the syllabus the court stated the following rule:
“In order to confer jurisdiction upon the appellate court a notice of appeal from County Court to the District Court under the provisions of Chapter 30-26, RCND 1943, must be served upon the necessary parties themselves. Service of the notice upon an attorney of record is insufficient.”
The rule so stated was decisive of the Bratcher case but the decision in the case discussed in some detail the various statutory provisions relating to service of papers in county court. In the opinion in the Bratcher case it was said:
“Chapter 30-26 does not specify the manner of making service of a notice of appeal. For this we must look elsewhere.
“Chapter 30-02, RCND 1943, prescribes pleading and process in probate matters. Section 30-0209 requires that ‘Except as otherwise provided in section 30-0211, a citation in county court must be served personally upon each respondent who resides within the county in which the proceeding is pending
*25 “Section 30-0211 requires specified citations to "be served personally or by publication; a provision which, is clearly not applicable to notices of appeal. However, this section further provides that ‘Service of every other citation required to be made by this title may be 'made by mailing a copy thereof, postage prepaid, at least fifteen days before the day fixed therein for hearing, to each of the respondents by registered mail. The filing of an affidavit of mailing shall be prima facie proof of service upon the party to whom such citation was mailed.’
“Section 30-0210, as amended by Chapter 227, Session Laws of North Dakota 1945, provides for service upon respondents residing outside of the county. The respondent Bratcher resided in the county and this section, therefore, is not applicable to him. '
“"We now come to a statutory provision which makes the manner of the service of citations provided for by the sections just mentioned applicable to notices of appeal from county to district courts. It is Section 30-0212 which says ‘all citations, notices, and papers of every kind required to be served by the provisions of this title shall be served in the manner provided by sections 30-0209, 30-0210, and 30-0211.’ . . .
“Notices of appeal from the county to the district court may not be served upon attorneys of record but in order to confer jurisdiction upon the appellate court must be served upon the parties themselves ‘in the manner provided by sections 30 0209, 30-0210, and 30-0211.’ ” Eberlein v. Bratcher, et al., 34 NW2d pp. 828, 829.
It will be noted that NDEC 1943, Sec. 30-0209 requires that citations in county court must be served personally upon each respondent who resides within the county in which the proceeding is pending, except as is otherwise provided in See. 30-0211; and that Sec. 30-0211 provides that citations in certain proceedings including proceedings for letters of administration, for letters testamentary, for letters of administration with the will annexed, for the probate of a foreign will, for a decree establishing heirship, and for letters of guardianship must be served as provided in Sections 30-0209 and 30-0210, thus making the provision in See. 30-0211 providing for service by mailing in
We are, also, of the opinion that in any event the appellee, Stormon, waived any defect in the service of the notice of appeal; that he made a general appearance in the case and submitted himself to the jurisdiction of the court before he made any objection to the jurisdiction. Generally it may be said that a party “who intends to rely on a want of jurisdiction over his person must appear, if at all, for the sole purpose of objecting to the jurisdiction of the court.” An appearance, in the first instance, for any other purpose, is usually considered general, and gives the same jurisdiction over a party as though process had been regularly served in the manner and form, and for the length of time, prescribed by law. 3 Am. Jur., Appearances, Sec. 11, pp. 789-790.
Broadly stated, any action of a party, except to object to the jurisdiction of the court over his person which recognizes the case as in court, will constitute a general appearance. 6 C. J. S. Appearances, Sec. 13, p. 42. And a general appearance brings a party into court for all purposes with the same effect as the proper service of process. 6 C. J. S., Appearances, Sec. 15, p. 45.
The record shows that after the appeal was taken a motion was made at the opening of the December 1948 term for the production of records and that at the hearing thereof the presiding judge suggested that stipulation be executed covering the items desired for examination, that accordingly a written stipulation was made, signed by the attorneys of record for the petitioner Stormon and by the attorneys of record for the contestants that “all books, documents, papers and correspondence belonging to Ethol G. McIntyre, and in the hands of
The petitioner had brought himself within the jurisdiction of the court, the objections to the jurisdiction were not well founded, and the court was in error in granting petitioner’s motion to dismiss the appeal for want of jurisdiction. The judgment appealed from is reversed and the case is remanded to the district court for further proceedings in conformity with the law.