Lake v. Albert

Diceinson, J. 1.' The right of appeal to the district court from the order of the probate court disallowing the plaintiff’s claim was regulated by section 24 and the following sections, of chapter 53, Gen. St. 1878. Auerbach v. Gloyd, 34 Minn. 500, (27 N. W. Rep. 193.) This section specifies, as a means of effecting an appeal, the filing in the probate court of an “application for such appeal.” In view of the fact that the party seeking to appeal had a right to do so, which the court could not refuse, it is considered that a notice of appeal, served and filed, was all that was required by the language or purpose of the statute. The statute does not contemplate any other action by the probate court, upon the “application” of an executor, administrator, or creditor, than the allowance of the same as a matter of course, and the certifying of the record to the appellate court. 2. The trial and determination of the claim in the district court, without pleadings having been made up as prescribed by statute, was a mere irregularity not going to the jurisdiction of the court. This respondent was authorized by the statute to prosecute the claim in district court in his own name. The note in question was made to him, but in reality for the benefit of another, who was his principal. This was within the exception of the statute as to real parties in interest. “A person with whom or in whose name a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section.” Gen. St. .1878, c. 66, § 28. 3. The payee of the note was a “creditor” of the estate, within the meaning of that term as affecting the statutory right of appeal. 4. The evidence justified the findings of the court as to the nature of the transaction, and that the same was not usurious. Order affirmed.