The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1912-01-13
REVERSE BENSON COUNTY PROBATE
AND REMAND It FOR NEW TRIAL

Bismarck, N. D., Jan. 13.-The fol-
lowing decision was handed down by
the supreme court yesterday:
In the matter of the estate of Anton
L. Peterson, deceased.
Zachariah Davidson, as administra-
tor of said estate, petitioner and res
pondent. VS.. the unknown heirs Of An
ton Z. Peterson, deceased, w. H.
Thomas as states attorney of Ben
sol county, North Dakota, Herman
Miesen and Dorothy Miesen, respond
ents.
Alfred Andreassen Ladehol, Halvor
Nilsson. Nils Andreassen, Emma Anvil
de Andreassen, ct al, appellants.
l.. After an appeal from county to
district court has within time been
perfected by the service of Il notice
of appeal upon some of the. parties
litigant, and where Il fatally defective
undertaking On appeal has s%easonably
been filed in a good faith endeavor to
perfect such appeal, the county court,
under section 1869 revised code of
1905. has jurisdiction of an applica-
tion based on an affidavit showing
such good faith and explaining the de-
fault to permit appellant to file a new
and sufficient undertaking i'll lieu of
the defective one.
AASiC hG AOSOiu ol SuCll dIl
appeal has been transmitted to the
district court and u motion is there
made to dismiss the appeal for want
of a legal undertaking, it Is held that
the requirement of a valid undertake
ing 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 insufficient or
void appeal bond with the notice of
appeal vests the district court with
Jurisdiction to order the record to be
sufficient bond on appeal may be
there approved and filed and the rec
ord re-transmitted to district court.
3. Where such notice of appeal
demands a trial de nov and the re-
trial involves issues OF both law and
fact. as the determination of the ex-
istence Of a foreign common law mar
riage necessarily to be determined
from evidence. it is triable OF evil
dence to be offered anew and not on
the record Or transcript Of testimony
and proceedings certified from county
court; and the last part of section
1885 is not t. be construed as denying
or limiting the manner of trial de
novo in such cases to Il review of the
record of the lower court.
4. Such an issue is n triable in
district court as an equitable action
where a jury trial is not had.
5. Where sc tried to the court the
record and the proceedings on appeal
from the district to the supreme court
is governed by the statutes as to ap-
peals in equitable actions. Vince a
jury is had in the district court the
appeal therefrom is governed by APP
peals from jury trials. following He'd
derich VS.. Hedderich, 1913 N. w. 276.
6. The statute vesting in the dis
trict court jurisdiction to try de novo
probate matters appealed from coun-
ty court is not constitutional as violat-
ing section Ill of the constitution
granting exclusive original jurisdiction
to the probate court Of such class of
actions, as the trial de novo on ap-
peal is but the exercise by the district
court Of the appellate jurisdiction con-
ferred by statute and permitted by
section 1913 of the constitution.
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..
8. The evidence offered in district