In Re Estate of Allgire , 183 Kan. 527 ( 1958 )

Jackson, J.,

dissenting: It is with regret that I must dissent from the holding of the majority. The notice of appeal in this case was properly drawn and addressed to all adverse parties and their attorneys. It gave notice to all of them that appellant was appealing from the orders of the probate court. The notice of appeal was timely served upon attorneys, who in fact, represented all adverse parties, and was so addressed to them. The attorneys accepted service but through an oversight on the part of the attorney for appellant, such acceptance omitted the names of Glenn Gibbs and his brother, James Gibbs. There is no doubt from the facts that the attorneys receiving the notice did represent Glenn and James, and would have signed the acceptance on their clients’ behalf if it had been so worded by the stenographer of appellant’s attorney before it was handed to them.

In this case we have a good notice of appeal actually served upon all parties and filed in the probate court as required by the statute G. S. 1949, 59-2405. The only fault was in the proof of the service which was actually made. This is the first time in which such a question has been before this court. The cases cited in the majority opinion all involve omission of parties from the notice of appeal and failures of actual service or in filing proper bond.

It would seem that the district court would acquire jurisdiction of the appeal when proper service of a proper notice is in fact made and filed in the probate court together with a proper bond. It would seem that a mere typographical mistake in the proof of service could be cured by affidavit or amendment to make the record speak the truth when that mistake is discovered. If that is not to be the rule, the thud part of section 59-2405 becomes meaningless. This part of the statute reads:

“(3) 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.”