I agree that the motion to dismiss did not constitute such a general appearance by respondent below as to deprive him of the right to take advantage of a jurisdictional defect in the appeal, if any. My difficulty is in finding any such defect. In fact, my consideration has resulted in the conclusion that there was none.
First, I must reject emphatically and utterly the idea that the mere index word "requisites," preceding § 166, is of any significance in its interpretation. There are an even 200 sections in the probate code, every one preceded by an index word suggestive of the subject matter dealt with. The idea that such a mere index reference can have any effect by way of expanding or limiting the meaning of that portion of the law indexed is something new to my experience and, I submit, almost unheard of in statutory interpretation. The other 200 sections of the probate code may be examined in vain to find a single index word which by any stretch of the imagination can be taken as a designed indication of what the legislature intended by the language used in the section.
The next thing to be considered is that we are dealing not with new, but with a revision of old, law. An attempt to introduce so radical a change as that established by this decision will not be lightly inferred from a mere change of phraseology in revision. Schmoll v. Lucht, 106 Minn. 188,118 N.W. 555; Odegard v. Lemire, 107 Minn. 315, 119 N.W. 1057; 6 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934) § 8961, and cases therein cited. A little later I will consider more at length the slight change that has been made.
As it stood before its revision by the probate code, the statute, 2 Mason Minn. St. 1927, § 8985, read as follows:
"No appeal shall be effectual for any purpose unless the following requisites are complied with by the appellant within thirty days after notice of the order, judgment, or decree appealed from:
"1. The appellant shall serve a written notice upon the adverse party, his agent or attorney who appeared in court, and, when there has been no appearance, by delivering a copy of such notice to the probate judge for such party. Such notice shall specify the order, *Page 440 judgment, or decree, or such part thereof as is appealed from, be signed by the appellant or his attorney, and be served in the same manner as notices in civil actions, and, together with proof of service thereof, be filed in the probate court.
"2. In case any person other than the representative appeals, he shall execute a bond, with sureties, to the judge, conditioned that he will prosecute his appeal with due diligence to a final determination, pay all costs and disbursements, and abide the order of court therein. But no appeal from an order, judgment, or decree shall be taken after six months from the entry thereof."
That had been our law for 59 years. Service of notice of the appeal was jurisdictional. Service of the bond was not, the statute requiring as to the latter only its execution. As changed by the probate code, the statute reads, L. 1935, c. 72, § 166:
"Sec. 166. 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 did 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, other than the State, the Veterans' Administration, or a representative appealing on behalf of the estate, 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."
It will be observed that the second sentence undertakes by enumeration to say what should be done "to render the appeal effective." *Page 441 That is a repetition, not of the language, but of the precise idea of the old statute. Concerning the notice, the declaration is that "the appellant shall serve" it upon the adverse party and file it "with proof of service thereof." Service and filing of the notice with proof of service in the time stated are jurisdictional prerequisites. The legislature made that very clear.
Now, if it had entertained that same intention concerning the bond, would we not find the same language in respect thereto? But we do not. On the contrary, all that is said concerning the bond is that, when required, the appellant "shall file in the probate court a bond in such amount as the court may direct," conditioned as stated.
Stopping there, analysis of § 166 shows absence of expressed intention to change the old law. The only intention thus far expressed is that, whereas the notice is to be served as prerequisite to the appeal, and filed with proof of service, the bond need not be served.
I now proceed to what is considered the new language which is assigned as the real basis for the decision, the concluding sentence of § 166. It reads thus: "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."
My submission is that the sentence prescribes only themanner of service where service is required. That is necessarily so because it refers first to "notice of the order, judgment, or decree appealed from," and such notice is not prerequisite to the appeal. Furthermore, to consider this sentence as making service prerequisite renders redundant, flagrantly so, all that was said earlier in the section about service of the notice. The only way to give all the language of the section an effect which will render the whole harmonious is to consider the concluding sentence a direction simply as tomanner of service and as adding nothing to the conditions precedent to the appeal, already carefully stated.
It is important to remember that from the very beginnings of our procedural law, service of the bond on appeal has not been jurisdictional. That remains true as to appeals to this court. In the *Page 442 latter field the statute (2 Mason Minn. St. 1927, § 9507) requires that a copy of the bond on appeal "be served on the adverse party with the notice of appeal." But such service is not jurisdictional and has never been. With such a background, we should not conclude on any mere implication, short of certainty, that the legislature has intentionally made service of the bond jurisdictional on appeals from the probate court where there is no suggestion of such a change as to appeals from the district court.
The concluding sentence of § 166, on which the majority opinion must stand, is not so very new after all. It was in the old law (2 Mason Minn. St. 1927, § 8985), but its requirement there applied only to the notice of appeal, which was to be served "as notices in civil actions." There, certainly, the words had nothing to do with the fact of service, already explicitly demanded, but referred only to the manner of service. What reason is there to suppose a different and much wider effect is to be given the old words from their mere transposition in the new law?
Of course, service of the bond is required to inform the respondent concerning it and so that he may object to the sureties. But that is far from saying that such service is jurisdictional. To the extent that there is new meaning in the concluding sentence of § 166, it is that "notice of the order, judgment, or decree appealed from" (never one of the requisites of an appeal) and the bond as well as the notice of the appeal itself (as under the old law) are to be served "as," i. e., in the same manner as, in civil actions. The bond is required to be served in civil actions. (2 Mason Minn. St. 1927, § 9507.) But such service is not jurisdictional. Failure to serve the bond is a mere "irregularity." Barrett v. Smith, 184 Minn. 107,109, 237 N.W. 881. In the light of the district court procedure and this explicit reference to it in the probate code, what is there to indicate so drastic an intentional change as that now held to exist? All reasonable inferences from the new law, when considered with the old, and the existing law as to appeals from the district court, appear to me to demonstrate that there was no intention to make service of the bond jurisdictional. *Page 443
If it is jurisdictional, the bond on appeal cannot be waived. Can anyone suppose that the revisers of the probate code intended that result? (They were not acting in the interest of surety companies or their agents.) Is it not conclusive on the point that, had it been the intention of the legislature to make service of the bond jurisdictional, they would have said so in the same explicit and careful language used in expressing that purpose as to the notice of appeal? Isn't the fact that in the case of the notice they have expressly required service, and in the case of the bond only its filing is demanded as under the old law, demonstrative of the continued intention that service of the bond be not prerequisite to the appeal?
This construction of § 166 is confirmed by § 167 (with which it must be construed), which states what the probate court must return to the district court when an appeal has been "effected." "The notice of appeal with proof of service thereof" must be returned, but only "the bond if required."There is no reference to proof of service of the bond. Surely, if the intention had been to make service of the bond jurisdictional, there would have been a requirement that the return include proof of such service so as to show jurisdiction, which is the prime purpose of a return on appeal. If the new intention was to make service of both notice and bond jurisdictional, how explain the same old statutory demand that the return contain proof of service of the notice without similar proof as to the bond?
If our decision is correct, the revisers of the probate code have specified a return which must fail to show jurisdiction.
If we indulge the assumption (to me untenable) that § 166, standing alone, has a crystalline clearness, does it not become bafflingly opaque when construed, as it must be, with § 167?
If by any chance the foregoing is correct, the order should be reversed.