Clough v. Sanders , 53 N.H. 618 ( 1873 )

^*Isaac W. Smith, J.

When an appeal is taken from a decree of a probate court, the statute requires that “ notice shall be immediately given of such appeal, and of the court at which it will bo entered and prosecuted, by publication thereof.” Gen. Stats., ch. 188, sec. 4. These proceedings are fatally defective because of want of notice. The requirement of the statute is, that notice shall be given immediately. It is evident the legislature intended, when one party is dissatisfied and claims an appeal, that the other party should be notified at once, that no unnecessary delay might occur, and that his rights might not be prejudiced thereby.

In Parker’s Appeal, 15 N. H. 24, it was held, that “ if these provisions [giving notice and filing bond] be not complied with, this court cannot take cognizance of the appeal, but it must be dismissed; ” that “ without a compliance with these provisions there is no valid appeal, ” but “ only a foundation laid for an appeal by filing a written claim in the court of probate.”

It is a year and a half since this appeal was taken: this is the third term since it was entered in this court, and no notice has been given, and no reason is assigned why notice has not been given. The statute requirement, that notice be given immediately, cannot be thus ignored. It is unnecessary to pass upon the question whether the bond was properly executed or seasonably filed.

If the appellant has been prevented from perfecting his appeal “ through mistake, accident, or misfortune, and not from his own neglect,” the two years within which he can petition for leave to appeal have not yet expired, and the dismissal of this proceeding will not deprive him of the opportunity of presenting the merits of his case to the attention of the court, if he has confidence that he can make such a case as would authorize the court to go behind the report of the committee. Appeal dismissed.

* Hibbard, J., having been of counsel, did not sit.