(concurring specially): From the facts reported in the court’s opinion and the remarks of Justice Jackson in his dissenting opinion it may be suspect that the court must go beyond the record to establish that Frank D. Oberg and W. M. Beall represented Glenn I. Gibbs and James Gibbs in addition to Sam Gibbs, individually and as executor for the last will and testament of Bess Allgire, deceased. But not so. The record as abstracted discloses that W. M. Beall signed the “Written Defenses, Answer *532and/or General Denial,” filed in the probate court on August 20, 1957, as counsel for all of the above named parties; that W. M. Beall approved the journal entry filed on September 7, 1957, in the probate court but dated August 26, 1957, setting forth the rulings concerning which appeal was taken; and that the “Motion to Dismiss Attempted Appeal,” filed in the district court on September 26, 1957, was signed by W. M. Beall, “Attorney for Sam Gibbs, Glenn I. Gibbs and James Gibbs,” and further that Frank D. Oberg and W. M. Beall signed another document entitled “Motion to Dismiss Attempted Appeal,” filed September 26, 1957, in the district court as “Attorneys for Sam Gibbs, as Executor of the Last Will and Testament of Bess Allgire, Deceased.”
Thus, on the 26th day of August, 1957, when the notice of appeal, presently under scrutiny, addressed
“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:”,
was served upon Frank D. Oberg and W. M. Beall as indicated by their acceptance and waiver of proof of service, all of which were filed in the probate court on the 26th day of August, 1957, there was absolutely no question but that these attorneys represented Glenn I. Gibbs and James Gibbs. The notice of appeal was properly addressed to all adverse parties and their attorneys of record. This notice was served upon counsel for adverse parties the same day the probate court heard the matter and announced its rulings adversely to the appellant.
Insofar as notice of appeal is concerned the provisions of G. S. 1949, 59-2405, were strictly met when notice was served upon counsel for all adverse parties, namely Frank D. Oberg and W. M. Beall. This was an accomplished fact as disclosed by the record before this court. Proof of service in and of itself is not substantive to the notice of appeal. This is a procedural aspect required by the statute to establish the fact of service upon adverse parties. Therefore, subdivision (3) of the statute is fully applicable since the appellant' in good faith gave notice of appeal but omitted through mistake to make proper proof of service. This is clearly within the meaning of “any other act” necessary to perfect the appeal — a trivial imperfection which should not be permitted to defeat an appeal. (In re Estate of Dudley, 159 Kan. 160, 152 P. 2d 678.)
*533As to this point I fully concur in the remarks set forth by Justice Jackson in his dissenting opinion. This point, however, does not control the decision in my opinion.
The district court under subdivision (3) of 59-2405, supra, is not obligated to permit amendment of the notice of appeal. Use of the term “may” leaves it discretionary with the district court to permit or deny amendment. The journal entry of the district court dismissing the attempted appeal recites:
“. . . John Berglund, as attorney for appellant, asks leave of the court to insert in the notice of appeal filed in the Probate Court at the bottom of the page thereof after the words ‘attorneys for Sam Gibbs, individually and as executor of the last Will and Testament of Bess Allgire, deceased’, the words ‘and Glenn I. Gibbs and James Gibbs’, which leave to amend said notice of appeal is by the court upon consideration denied. . . .”
In my opinion the district court was correct in denying appellant’s motion to amend the notice of appeal in the manner requested.
The attempt to amend was not strictly a request to amend the notice of appeal. It was a request to amend the acceptance of service and waiver of proof signed by Frank D. Oberg and W. M. Beall as attorneys for Sam Gibbs, individually and as executor of the last will and testament of Bess Allgire, deceased. Counsel are clearly within their right to accept service of process and waive proof of service for any or all of the parties they represent or they may refuse to waive proof of service for any or all of the parties they represent. The attempt made by counsel for appellant to add by amendment additional adverse parties to the “Acceptance of Service and Waiver of Proof” of opposing counsel was clearly beyond the authority of any court to grant.
Had counsel for the appellant made application to the court for leave to show proof of service of his notice of appeal upon counsel for Glenn I. Gibbs and James Gibbs on the 26th day of August, 1957, verified by his affidavit, his motion may have been granted by the trial court.
For the reasons heretofore indicated, I am of the opinion that the result reached in this case is correct.