In re Estate of Scott

Appeal—Dismissal—Time to File Transcript—Settlement op Statement—Presumption of Jurisdiction.—An appellant is entitled to forty days after the settlement of a statement on motion for a new trial in which to file his transcript upon appeal; and upon a motion to dismiss the appeal, it must he presumed that the act of the judge in settling the statement was within his jurisdiction.

In.—Review op Error.—Any error in settling the statement must be considered at the hearing of the appeal, and cannot be reviewed upon a motion to dismiss the appeal.

Id.—Appeal from New Trial Order—Defects in Proceedings—Notice of Motion.—An appeal from an order denying a new trial will not be dismissed for any defect in the proceedings in the superior court leading up to the motion, or on the ground that, the court improperly made the order. The failure to serve the notice of the motion upon all the parties to the proceeding, or any defect in the character of the notice, is not ground of motion to dismiss such an appeal, and can only be considered upon the hearing of the appeal.

Id.—Order Admitting Will to Probate—Presumption upon Appeal— Use of New Trial Statement.—Upon appeal from an order admitting a will to probate, where it appears that a motion for a new trial had been made and denied, it will he presumed that the settled statement on such motion, which became a record of the court, was used on the hearing of the motion; and no defect in the proceedings for the motion can he ground for dismissing the appeal from the order.

Id.—Service of Notice of Appeal—Adverse Parties.—Upon appeal from such an order, the legatees and devisees under the will are adverse parties, upon whom the notice of appeal must be served; and if one of them is not served therewith, the appellate court has no jurisdiction to hear the appeal as between the other parties, and it must be dismissed.

Id.—Service upon Parties Appearing—Attorney for Absent Parties. A notice of appeal from an order admitting a will to probate addressed to and served upon all parties who appeared at the contest of the probate of the will, including an attorney for absent heirs and creditors not otherwise represented, who appeared at the hearing of the contest, is sufficient to give jurisdiction to hear the appeal.

Id.—Probate Matters—Right of Appeal—Liberal Construction of Statutes.—The right of appeal to this court from the superior court in all such probate matters as may be provided by law, is given by the constitution, and statutes making provision for such appeals, and regulating the procedure therefor, should be liberally construed.

Id.—Entry of Order—Time for Appeal—Stipulation—Estoppel.— The time for appeal from an order admitting a will to probate begins to run only from the date of the actual entry of the order at length in the records of the court, and is determined by the statute, and not by the stipulation of the parties. A stipulation that the order was actually entered at a date prior to its actual entry does not estop the appellant from showing the contrary to sustain the appeal, the respondent not having parted with nor obtained any right by reason of the stipulation, and not being injured by the disregard thereof.