On Motion to Dismiss the Appeal.
Mr. Justice Wolvertondelivered the opinion.
This cause originated in the county court, was appealed to the circuit court, and now an appeal is sought to be prosecuted to this court. What purported to be the last will and testament of Esther Louise Mendenhall was, upon the petition of Rush Mendenhall, who is nominated as executor therein, admitted to probate by the county court in common form. Subsequently E. and E. R. Mendenhall, the respondents herein, filed objections to the probate thereof, and the following named heirs and legatees, along with the executor, were cited to appear and show cause why the probate of said will should not be revoked, the will set aside and declared invalid, namely, Gyrus J. Mendenhall, E. J. Mendenhall, Hattie Mendenhall, and Lizzie C. Mendenhall. None of the last-named parties appeared, but the contest was carried on wholly between E. and E. *544R. Mendenhall, as contestants, on the one side, and Rush Mendenhall, executor, as proponent, on the other. At the hearing the county court set the will aside, and in his attempt to appeal to the circuit court from such decree the proponent, on February 6, 1901, served a notice thereof upon the contestants only, directed to them and their attorney, and reciting “that the said Rush Mendenhall hereby appeals,” etc., without designating himself as executor of the last will and testament of the testatrix. There was a motion to dismiss the appeal in the circuit court, which being overruled, the decree of the county court-was affirmed after a hearing upon the merits. The respondents now move to dismiss the appeal to this court, upon the following grounds: (1) That the proponent prosecuted the appeal to the circuit court in his individual, and not in his representative, capacity as executor; (2) that the notice of appeal was not served upon all the heirs and legatees; and (3) that the entire testimony taken at the trial in the county court does not accompany the transcript.
1. The motion challenges the jurisdiction of this court to entertain the appeal (Corder v. Speake, 37 Or. 105, 51 Pac. 647), but presents no special reason why it has not been regularly perfected in the mode pointed out by statute. The first ground assigned is not of that character, but is directed rather to the merits of the controversy as presented to the circuit court, and should be a matter for our consideration upon a perfected appeal. Whether the question was raised or not by the motion made in the circuit court to dismiss the appeal from the county.court, it could have been so raised, and was a matter for that court to pass upon primarily, whereupon it would become the province of this court to review and revise its adjudication with relation thereto; thus demonstrating that the question is one going to the merits of the controversy, and not *545involving the regularity and efficacy of the appeal from the circuit court. So the first ground is not well taken.
For appellant there was a brief over the names of Schuyler G. Spencer and Pipes & Tifft, with an oral argument by Mr. Spencer and Mr. Martin L. Pipes. For respondents there was a brief and an oral argument by Mr. Julius G. Moreland and Mr. Edw. Mendenhall.2. - The second is disposed of by the 1899 amendment of the statute (Laws 1899, pp. 227, 228), in force at the time the appeal to the circuit court was taken. Since the adoption of that amendment, and of another relative to the same subject (Laws 1901, p. 77), an appeal may be taken by serving a notice thereof on such adverse party or parties as have appeared in the action or suit: B. & C. Comp. § 549, subd. 1; United States Invest. Corp. v. Portland Hospital, 40 Or. 523 (64 Pac. 644). The statute has been literally observed in the present instance.
3. By the third and last ground urged for dismissal the question is presented whether or not certain testimony taken in the cause in the county court and lost was retaken or supplied, or the irregularity waived in that court. As we understand the record, all the testimony accompanies the transcript to this court that was before the county court at its final hearing upon the merits. It is plain, therefore, that the regularity of the appeal from the circuit court is not challenged by the question, and hence we cannot entertain it until we reach the cause upon its merits. Motion Overruled.