Opinion
December 17, 1927. Opinion On Rehearing September 28, 1928.
APPEAL AND ERROR: Dismissal — Timely Motion. A motion to dismiss 1 an appeal for want of jurisdiction is timely even though service of the motion was not made ten days before the day assigned for the submission of the cause, when it appears that the cause was not submitted under said assignment, but was continued, and reassigned for submission at a later term, which afforded appellant much more than said ten days' notice.
APPEAL AND ERROR: Perfecting Appeal — Failure to Serve Adversely
Interested Party.
Appeal and Error: 3 C.J., § 1320, p. 1218, n. 9; § 1341, p. 1239, n. 59; 4 C.J., § 2410, p. 594, n. 62.
Appeal from Harrison District Court. — EARL PETERS, Judge.
An action in partition, involving the construction of a will. An appeal is taken from the decree of the district court. — Appeal dismissed.
R.J. Organ and William P. Welch, for Florence A. Piercy, appellant.
Bolter Murray, for Joe Moore, Ruby Coffman, Ila Arnt, Ida Withem, Marie Small, Sam Moore, Edna Moore, and Juanita Christiansen, appellees.
P.W. Harding and Robertson Havens, for Hazel Dungan, Leonard Dungan, and Mrs. Earl McFarland, appellees.
W.I. Wolfe and Cochran Wolfe, for Ella G. Hicks, intervener.
Tamisiea Tamisiea, for Lillie Piercy, intervener.
Frank Tamisiea, Guardian ad litem for Martha Moore and Abbie Moore, appellees.
By reason of the matters hereinafter set out, the original opinion filed in this case and reported in 216 N.W. 753 is withdrawn.
Certain of the heirs filed a motion to dismiss the appeal in this case. In the original opinion we held that, because the case was assigned for trial on March 9, 1927, and motion to dismiss the appeal was served on March 2d preceding, the 1. APPEAL AND motion to dismiss should be overruled, under ERROR: Section 12885, Code of 1927, and Rule 19 of this dismissal: court, because not served ten days before the timely time the case was assigned for trial. motion.
On petition for rehearing, our attention was called to the fact that the cause was not submitted at the period commencing March 9, 1927, but was continued, and reassigned for the May period following; hence the service was within the time. This matter was considered by the full bench, and it is the conclusion of the court that, as the case was finally submitted at the May period, the motion to dismiss was served in time, and our former ruling is erroneous.
The reason and purpose of Section 12885 and said Rule 19 are to prevent the raising of the question of want of jurisdiction in this court at the eleventh hour, when it is too late for the opposing party to meet such contention. In this case, however, there was abundant time between the service of the motion attacking the jurisdiction of this court and the submission of the case for the appellant to meet such contention and correct her record, which, in fact, was attempted, a certification of such record being filed in this court April 4, 1927. We therefore will give consideration to this motion.
There are some thirty parties interested in this case, represented by nine firms of attorneys, and it has been a laborious task to check the record as to service of notice of appeal. The point made in the motion to dismiss 2. APPEAL AND is that the appeal was not perfected because of ERROR: want of service of notice on certain of the perfecting appellees. It is clear that no service of notice appeal: was had upon DeWitt Bronson, Mary C. Moore, failure Florence Young, Martha and Abbie Moore, or Frank to serve Tamisiea, as guardian ad litem for said Martha adversely and Abbie Moore, minors. The rule in this state interested is well established that want of service of party. notice on opposing parties does not defeat the jurisdiction of this court unless the rights and interests of such parties would be adversely affected in event that this court should change the decision of the lower court.
As to Mary C. Moore, it is quite obvious that, if any of the contentions of the appellant should be sustained by this court, it would result in increasing her share; hence the failure to serve notice on her is not fatal.
It is equally obvious that the interests of Florence Young would not be adversely affected.
As to DeWitt Bronson, the lower court decreed him to be the owner of an undivided one eighth of the property, subject to payment by him of $100 to his sister Florence. Under any theory advanced by appellant, a change from the decision of the lower court of necessity will result in an increase of his share, and not a decrease; hence no harm would come to him from a failure to serve notice of appeal upon him.
Among the appellees were two minors, Martha and Abbie Moore. The district court appointed Frank Tamisiea guardian ad litem for them, and he appeared and filed answer. The court awarded to each of these minors a one-sixteenth interest in the property proposed to be partitioned. Every contention made by appellant herein, if sustained by this court, must result in a reduction of the respective shares of these two minors; hence notice of appeal was necessary as to them. No such notice of appeal having been served on them or their guardian ad litem, this appeal was not complete, and the motion to dismiss should have been sustained. The parties above referred to were not served with notice in either the appeal of Florence A. Piercy or that of the intervener Ella G. Hicks. — Appeal dismissed.