The opinion of the court was delivered by
Wertz, J.:This is an appeal from an order of the district court dismissing an appeal from the probate court. Under the facts as presented the basic question for our determination concerns the power and jurisdiction of the district court to permit an amendment to a concededly defective and insufficient notice of appeal from the probate court to the district court.
The facts pertinent to the question involved follow: The will of *528Bess Allgire, which was consented to by her husband, Emmett Allgire (plaintiff-appellant), was admitted to probate on July 18, 1956, and Sam Gibbs was duly appointed and qualified as executor thereof. Under the will Emmett was left a life estate in all of Bess’ property, with remainder, at Emmett’s death, to Sam Gibbs, Glenn I. Gibbs and James Gibbs, brothers of Bess.
On petition by Emmett the probate court set aside to him a twenty-acre plot of land as a homestead and the statutory allowances. Subsequently, the executor filed his petition for final settlement. Emmett filed motions to set aside his entry of appearance and the court’s previous order admitting Bess’ will to probate. From an order overruling his motions, Emmett appealed to the district court.
The material portions of the notice of appeal read:
“Notice of Appeal
“To: Sam Gibbs, individually and as executor of the last will and testament of Bess Allgire, deceased; Glenn I. Gibbs and James Gibbs, and their attorneys of record, Frank D. Oberg and W. M. Beall, and Walter O. Curtis, Probate Judge for the same and all other interested parties:
“All of you are hereby notified that Emmett Allgire hereby appeals from the orders, judgments, decrees and decisions of the Probate Court of Clay County, Kansas, rendered in the above entitled matter on the 26th day of August, 1957, denying the appellant’s Motion to Vacate Order, Election of Emmett Allgire, Motion to Withdraw, Entry of Appearance, Waiver of Notice and Consent to Immediate Hearing, and Petition for Probate of Will and Appointment of Executor Thereof, wherein the said court denied all above said applications of the appellant.
“Dated this 26th day of August, 1957.
_“/s/ John Berglund_
John Berglund
Clay Center, Kansas
Attorney for Appellant,
Emmett Allgire.
“Acceptance of Service and Watver of Proof
“Service of this notice of appeal is hereby accepted, and proof of service is waived this 26th day of August, 1957.
“/g/ Frank D. Oberg_
Frank D. Oberg
7s/ W. M. Beall_
W. M. Beall
Attorneys for Sam Gibbs, individually and as executor of the last will and testament of Bess Allgire, deceased.
‘Filed: August 26, 1957‘
*529Thereafter, on September 26, 1957, two- motions to dismiss Emmett’s attempted appeal were filed in the district court by Sam Gibbs, individually and as executor, Glenn I. Gibbs and James Gibbs for the reasons that the notice of appeal was not served on all adverse parties or their attorneys of record, or on the probate judge for all adverse parties, nor was proof of service, verified by affidavit, filed in the probate court, nor was proof of service waived, all as provided by G. S. 1949, 59-2405, and, as a consequence, the court had no jurisdiction of the subject matter or action.
On October 2, 1957, during the hearing on defendants’ motions to dismiss, Emmett’s counsel orally moved the district court for leave to amend the notice of appeal by inserting the names of Glenn I. Gibbs and James Gibbs after the words “attorneys for Sam Gibbs, individually and as executor of the last Will and Testament of Bess Allgire, deceased,” as shown in the acceptance of service and waiver of proof aforementioned. The court sustained defendants’ motions to dismiss the attempted appeal and denied Emmett’s motion to amend, from which order Emmett appeals to this court.
The only adverse parties interested in the case then and now are Sam Gibbs, individually and as executor of the last will and testament of Bess Allgire, deceased, Glenn I. Gibbs and James Gibbs (defendants-appellees). It may be noted that the acceptance of service and waiver of proof of the notice of 'appeal was limited by attorneys Oberg and Beall to Sam Gibbs, as an individual and as executor.
Plaintiff does not contend that he served a copy of the notice of appeal upon Glenn I. Gibbs and James Gibbs, or that he filed an affidavit showing proof of service of the notice of appeal upon the probate judge for all adverse parties. It is Emmett’s contention that the trial court erred in refusing him permission to amend his notice of appeal, which was defective only because his attorney, through a clerical error, omitted the names of two of the interested parties, i. e., Glenn I. Gibbs and James Gibbs, from the acceptance of service and waiver of proof, which names were contained in the address of the notice of appeal.
In our recent case of In re Estate of Freshour, 177 Kan. 492, 280 P. 2d 642, we had occasion to again review our decisions and construe G. S. 1949, 59-2405 providing for appeals from the probate court to the district court on the questions similarly involved herein. What was said there is applicable here. Suffice it to say that in *530order to render an appeal effective, thus vesting the district court with jurisdiction of the action, the appealing party must comply with the requirements of subdivisions (1) and (2) of the statute. The legislative mandate calls for service of the notice of appeal upon (1) the adverse parties, or (2) their counsel of record, or (3) the probate judge for the adverse parties. In the instant case plaintiff Emmett failed to comply with any one of these methods. The acceptance of service and waiver of proof by attorneys Oberg and Beall was limited to Sam Gibbs, as an individual and as executor. Emmett’s counsel prepared the notice of appeal, including the acceptance and waiver of proof of service. However, the mentioned attorneys were not requested to nor did they accept service or waive proof of service for Glenn I. and James Gibbs, as their attorneys of record, and no affidavit was filed by Emmett so contending. Because no service was made of the notice of appeal as prescribed by the aforementioned statute, the appeal never became effective. Therefore, the district court never acquired jurisdiction over the subject matter of the action. Lacking jurisdiction of the appeal, it follows the court was without power and authority to exercise any discretion with respect to permitting the amendment of the notice requested by the plaintiff Emmett.
Emmett contends that the language of subdivision (3) of the mentioned statute, which provides that whenever a party in good faith gives due notice of appeal and omits through mistake to do any other act necessary to perfect the appeal, the district court may permit an amendment on such terms as may be just, gives express authority to the district court to permit the amendment under consideration.
There is no merit to this contention. Subdivision (3) of the statute contemplates that due notice has been given; i. e., subdivisions (1) and (2) have been complied with. In In re Estate of Freshour, supra, we again analyzed and construed subdivision (3) and held that the words “other act” mean in addition to or distinct from those mentioned in subdivisions (1) and (2).
No useful purpose would be gained by a further discussion of the questions involved in the instant case. The same contentions were made, fully analyzed and settled in the two recent cases of In re Estate of Freshour, supra, and In re Estate of Demoret, 169 Kan. 171, 218 P. 2d 225. What was said therein controls and is adhered to in this case. The judgment of the trial court is therefore affirmed.
It is so ordered.