1 Reported in 272 N.W. 261. Appeal from a judgment entered pursuant to an order of the district court dismissing, because of lack of jurisdiction, an appeal from an order of the probate court.
February 25, 1936, the probate court allowed, over the objections of the appellants, the will of one Joseph Van Sloun. March 20, 1936, the appellants duly served and filed their notice of appeal from the order allowing the will and furnished and filed in the probate court on March 21, 1936, a duly approved appeal bond. June 15, 1936, the respondent served notice of a motion for dismissal of the appeal. A copy of the appeal bond and a copy of the statement of the propositions of law and fact upon which the appellants relied for reversal of the order of the probate court were not served *Page 435 upon the respondent until June 26, 1936. The district court granted the motion to dismiss on the ground that the appeal bond had not been served on the adverse party as required by § 166 of the new probate code, see L. 1935, c. 72, 3 Mason St. 1936 Supp. § 8992-166.
As one ground for dismissal respondent alleged, in the lower court, that the appellants did not, within 20 days after the perfection of their appeal, file with the clerk of the district court or serve upon the adverse party a clear and concise statement of the propositions of law and of fact upon which they were relying for reversal of the order of the probate court as required by § 169 of said code. As held in In re Estate of Slingerland, 196 Minn. 354, 265 N.W. 21, noncompliance with that section is not necessarily jurisdictional. Appellants therefore urge that respondent by seeking a dismissal for a nonjurisdictional reason put in a general appearance, thereby subjecting himself to the jurisdiction of the district court and precluding himself from obtaining any relief by virtue of appellants' noncompliance with the provisions of § 166.
The fact that respondent was mistaken as to the extent of the relief that would be granted because of failure to comply with the provisions of § 169 did not make his appearance general. It is not essential for the moving party in a motion to dismiss to specifically state that the appearance is "special," for as said in Houlton v. Gallow, 55 Minn. 443, 445, 57 N.W. 141, 142, in determining whether an appearance is general or special the court will look "to the purposes for which it was made, rather than to what the party had labeled it." Here the motion undoubtedly was made on the ground that the court had acquired no jurisdiction because of the failure to file a statement of the propositions of law and fact. That is readily apparent from the tenor of the motion. For that matter, even had counsel given the motion a specific label it would not have been conclusive as to the nature of the appearance. See St. Louis Car Co. v. Stillwater St. Ry. Co. 53 Minn. 129, 54 N.W. 1064. Respondent did nothing to indicate that he was asking the court to exercise its discretion, nor did he at any time so act as to assume *Page 436 that jurisdiction existed so as to bring himself within the rule of Burt v. Bailey, 21 Minn. 403, or Johnson v. Hagberg,48 Minn. 221, 50 N.W. 1037. At all times the jurisdiction of the court was questioned. The circumstance that respondent was in error as to his rights under the first alleged ground of relief does not detract in the least from this all-important fact. The rights of litigants should not be jeopardized by a requirement that a party act at his peril merely because the grounds alleged for relief in a motion made for the purpose of objecting to the jurisdiction of a court are not meritorious.
More difficult is the question whether the failure to serve a copy of the appeal bond on the adverse party was jurisdictional. The lower court held that it was. Section 166 of the new probate code provides:
"Requisites. — Such appeal may be taken by any person aggrieved within thirty days after service of notice of the filing of the order, judgment, or decree appealed from, or if no such notice be served, within six months after the filing of such order, judgment, or decree. To render the appeal effective (1) the appellant shall serve upon the adverse party or his attorney, or upon the probate judge for the adverse person who does not appear, a written notice of appeal specifying the order, judgment, or decree appealed from, file in the probate court such notice with proof of service thereof, and pay the required fee for the return, (2) the appellant * * * shall file in the probate court a bond in such amount as that court may direct, conditioned to prosecute the appeal with due diligence to a final determination, to pay all costs and disbursements, and to abide the order of the court therein. The notice of the order, judgment, or decree appealed from, the notice of appeal, and bond, if required, shall be served as in civil actions in the district court."
That the bond was not served is admitted. Is the last sentence of § 166 mandatory in requiring that the bond be served, or is it merely directory as to the manner in which service may be made? To us it seems to require service. In In re Estate of Slingerland, 196 Minn. 354, 265 N.W. 21, § 166 was partially construed in order *Page 437 to make a comparison with § 169 following it. There it was indicated that because of the fact that the entire section is headed by the word "requisites" of an appeal and also contains the phrase "To render the appeal effective," the requirements stated therein were jurisdictional. The sentence here being construed contains part of those requirements. Cut down to bare essentials, the sentence reads: "The * * * bond * * * shall be served as in civil actions in the district court." Certainly it must mean that the bond is to be served and that the service is to be made as are services of other matters in civil actions had in the district court. This particular requirement of the code is new. Sections 8984 and 8985 of 2 Mason Minn. St. 1927, which § 166 of the code replaced, did not contain it. Thus precedent is not of much help.
No discretion is left to the court in this matter. 2 Mason Minn. St. 1927, § 8988, provided that an appeal from the probate court to the district court "shall be dismissed" unless the cause was entered on the calendar on or before the first day of the term for which it was noticed. In In re Estate of Mollan, 181 Minn. 217, 232 N.W. 1, and Hintermeister v. Brady,70 Minn. 437, 73 N.W. 145, that section was construed and held to confer a discretion on the district court as to whether it would dismiss for failure to comply with it. That is not the situation here. In the instant case the district court never has acquired jurisdiction; thus there is no possible authority for it to exercise any discretion. That right cannot arise until jurisdiction has been acquired. Under § 8988 the appeal to the district court actually had been perfected, and then the question as to whether the court would dismiss the cause arose. That was after the court actually had jurisdiction. Here it never has been obtained.
Appeals from the probate court being entirely statutory, it necessarily follows that there must be compliance with the statute allowing them. In re Estate of Ploetz, 188 Minn. 401,247 N.W. 804; In re Estate of Mikkelson, 178 Minn. 601,228 N.W. 174. The case is not controlled by Riley v. Mitchell,38 Minn. 9, 35 N.W. 472, in which it was held that the filing of a defective bond was only an *Page 438 irregularity, for the reason that there a bond actually was filed as required. Here there was no service of the bond at all. There was not even an attempt to comply with the requirements of § 166 in this regard. Although questions of this nature "should not be disposed of on an impractical ground and so brought to a result in conflict with practical requirements," see In re Estate of Peterson, 197 Minn. 344,347, 267 N.W. 213, 215, 104 A.L.R. 1188, in the instant case the question of impracticability cannot be considered, for the legislature has very definitely, and apparently after a great deal of thought, determined that the bond "shall be served" and has made such service one of the "requisites" "to render the appeal effective." The suggestion that the word "requisites" is simply a "headnote" placed as such sometimes are by an annotator is without merit, for as originally introduced in the legislature (House File No. 787), the section contained both the word "requisites" and the provision that the bond "be served." Although the bill was amended in other particulars, no change was made as to this particular section. The clear and expressed purpose of the legislature cannot be disregarded.
A certain pamphlet from which a notation is made by appellants, prepared by the chairman of the judiciary committee of the state senate at the time the probate code was up for consideration in the legislature, although apparently printed with official consent, is not helpful in explaining this particular sentence. It makes no comment at all relative to the part of § 166 here being considered.
Affirmed.