Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-01-12
SUPREME COURT

In the Supreme Court, State of
North Dakota, October Term, 1911.
In the Matter Of the Estate OF
Anton E. Peterson, Deceased.
Zachariah Davidson, as Administra-
tor OF said Estate,
Petitioner and Respondent.
VS..
The Unknown Heirs of Anton E..
Peterson. Deceased, w. H. Thorn
as as States Attorney of Benson
County, North Dakota, Herman
Mieson and Dorothy Mieson,
Respondents.
Alfred Andreassen Ladehol, Halvor
Nilsson, Nils Andreassen, Emma
Alvilde Andreassen, ct al,
Appellants.
1. After an appear from county to
district court has within time been
perfected by the service of notice
of appeal upon some of the parties
litigant, and where a fatally defect
i've undertaking On appeal has seas
onably been filed in a good faith en-
deavor to perfect such appeal, the
county court, under Sec. 1869 R c.
1905. has jurisdiction of an applica-
ton based on an affidavit showing
such good faith and explaining the
default to permit appellant to file a
new and sufficient undertaking in
lieu of the defective one.
2. Where the record on such an
appeal has been transmitted to the
district court and motion is there
made to dismiss the appeal for want
of a legal undertaking, it is held
that the requirement of valid un-
dertaking to be served and filed as
a step in the appeal proceedings is
primarily for the purpose of security
and as such the filing of an INSULT
cient or void appeal bond with the
notice of appeal vests the district
court with jurisdiction to order the
record to be remanded to the county
court that a sufficient bond on ap-
peal may be there approved and
filed and the record re.transmitted
to district court.
3. Where such notice of appeal
demands a trial de novo and the re-
trial involves issues of both law and
fact, as the determination of the ex-
istence of a foreign common law
marriage necessarily to be determ-
ined from evidence, it is triable on
evidence to be offered anew and not
On the record or transcript of testi-
mony and proceedings certified from
county court; and the last part Of
Sec. 1885 is not to be construed as
denying or limiting the manner Of
trial de novo in such cases to re-
view of the record of the lower
court
Such an issue is one triable in
district court as an equitable action
where a jury trial is not had.
5. Where so tried to the court
the record and the proceedings on
appeal from the district to the su-
preme court is governed by the sta
tutes as to appeals in equitable &C.
tons. Where jury is had in the
district court the appeal therefrom
is governed by appeals from jury
trials. following Hedderich v. He'd
derich, 1923 N. w. 276.
6 The statute vesting in the dis
trict court jurisdiction to try de no.
vo probate matters appealed from
county court is not constitutional as
violating Sec. III of the Constitu-
ton granting exclusive original jur.
isdiction to the probate court of such
class of actions. as the trial de novo
on appeal is but the exercise by the
district court of the appellate juris-
diction conferred by statute and per-
mitted by Sec. 103 of the Constitu-
ton.
Z. The settled statement of the
case on appeal from district to this
court from the determination of an
equitable issue as in this action
should include only the proceedings
had in the district court trial.