In Re Estate of Ploetz , 188 Minn. 401 ( 1933 )

¹ Reported in 247 N.W. 804. In the matter of the estate of August Ploetz, the petition of Bertha Otting, one of the devisees therein, for the admission to probate of a purported will was denied. Her appeal to the district court was dismissed. She appeals from an order denying her motion for a new trial.

1. Without awaiting written notice of filing in the probate court of the order denying her petition, appellant served notice of appeal therefrom to the district court October 26, 1929. But that notice, with admission of service, was not filed in the probate court within 30 days nor until December 7, 1929. The order dismissing the appeal was right and is affirmed on the authority of In re Estate of Nelson, 180 Minn. 570,231 N.W. 218. The point is that the statute, G. S. 1923 (2 Mason, 1927) § 8985, requires both service and filing of the notice of appeal with proof of service "within thirty days after notice of the order, judgment, or decree appealed from."

2. Appellant must be considered as having had that notice, or to have waived it not later than the day on which her notice of appeal to the district court was served. It is settled law that "a motion to the court or other proceeding by a party, with reference to the decision, which presumes his knowledge that it has been made, and by which he seeks to protect his own interest against the rights of the other party under the decision, will be regarded as a waiver of his right to a notice of the decision." Gardner v. Stare, 135 Cal. 118, 120, 67 P. 5. To the same effect are Cottle v. Leitch, 43 Cal. 320; Thorne v. Finn, 69 Cal. 251, 10 P. 414; Bowers v. Watts, 40 S.C. 547,18 S.E. 888; State ex rel. Grant v. First Judicial District Court, 38 Utah, 138, 110 P. 981, Ann. Cas. 1913B, 437; Downs v. Bruce Independent Sch. Dist. No. 49, 52 S.D. 168,216 N.W. 949; Webb. v. Webb, 247 Mich. 161, 225 N.W. 514.

Order affirmed.

ON APPLICATION FOR REARGUMENT. On April 13, 1933, the following opinion was filed: