Estate of Nelson

HABBISON, J.

Motion to dismiss the appeal. After the will of the above-named decedent had been admitted to probate, certain of his heirs filed a petition for the revocation of its probate. This petition was answered on behalf of three executors by their attorneys, Platt & Bayne and H. A. Powell— one executor not appearing to the citation therein; and by the devisees and legatees under the will by their attorney, Edwin Swinford. Upon a trial of the issues made by these answers judgment was rendered against the petitioners, and their motion for a new trial was afterward denied. From this order the present appeal has been taken.

The notice of appeal is directed “To Messrs. Platt & Bayne, attorneys for executor, Edwin Swinford, attorney for legatees and devisees, and the clerk of said court.” It was filed with the clerk and served on Mr. Platt of the firm of Platt & Bayne. An admission of its service was made on Mr. Swinford, and also by the nonappearing executor.

The executors for whom Messrs. Platt & Bayne appeared have moved to dismiss the appeal on the ground that the notice of appeal is not addressed to any of the executors of said will, or to any of the legatees or devisees under the will, and on the further ground that the notice of appeal is addressed to Messrs. Platt & Bayne, attorneys for executor, without saying for which executor.

Section 940 of the Code of Civil Procedure provides that: “An appeal is taken by filing with the clerk of the court in which the judgment or ordér appealed from is entered, a notice stating the appeal from the same, or some specified part thereof, and serving a similar notice on the adverse party or his attorney.” There is no requirement herein that the notice shall be “addressed” to the persons who constitute the “adverse party,”

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and the- provision that the notice shall he served upon “the adverse party or his attorney” is to be read in connection with section 1015 of the Code of Civil Procedure that “in all cases where a party has an attorney in the action or proceeding, the ’service of papers when required must he upon the attorney instead of the party.” The notice of appeal is not process requiring personal service for the purpose of bringing the respondent before the court, hut is the declaration of an intention, to take further proceedings in a pending cause, and, like all other notices in the cause, the statute requires it to be in writing and to he served upon the attorney of the party instead of the party himself. In form it must sufficiently indicate the order or judgment from which the appeal is taken, but it would he insisting upon an idle ceremony to require that the notice should he addressed to the party as well as to Ms attorney, when the statute provides that the party can receive the information only through a service of the notice upon his •attorney.