Starkweather v. Bell

Citations

• 12 S.D. 146
• 80 N.W. 183
• 1899 S.D. LEXIS 96

Syllabus

<p>1. Under Comp. Laws, 59(16, on an appeal from a judgment of a county court in probate the notice of appeal and bond are required to be filed with the county judge.</p> <p>2. The endorsement of a filing mark by a judge or clerk of court is not an essential part of the filing of papers, and, where papers for an appeal were in fact properly filed, the court, on a motion to dismiss, may permit such indorsement to be supplied, or an incorrect indorsement to be amended, in accordance with the facts.</p> <p>8. There being, under the statute, but one court to which an appeal from the county court in a probate proceeding can be taken, the failure of a notice of appeal from a judgment in such a proceeding to state the court to which the appeal is taken is immaterial.</p> <p>4. A motion in the circuit court 1o dismiss an appeal from a judgment of a county court on account of an alleged defect in the appeal bond, where such bond is sufficient to confer jurisdiction, is addressed to the discretion of the court, and its rofusal to dismiss will only be reversed where an abuse of discretion appears; but it is the belter practice, where the bond, though legally sufficient, is defective in form, to require a new undertaking to be filed.</p> <p>8. On the trial of the contested proceeding for the probate of a will, the question of issue being whether a different will, shown to have been made by the testatrix, was executed before or after the one in controversy, the testimony of the proponent, who was the husband of the testatrix, and solo benifieiary under the will offered, to the effect that prior to the execution of such will he brought the other will from the depository, at the request of the testatrix, who expressed her desire to change it, and that he saw such will in her possession on the day the one in suit was executed, related to a transaction between the witness and the deceased and was inadmissible, under Comp. Laws, § 5260.</p> <p>6. Where the evidence is conflicting, th