Waterman v. Pulsifer

The sufficiency, under E. S., c. 66, § 11, of the notice of appeal taken by the present appellant, a creditor of the estate of Jabez T. Waterman, from the decision of the commissioners of insolvency allowing the appellee’s claim against that estate, is stated in terms to be the question reserved for consideration upon these exceptions.

The notice of March 10, 1879, was precisely what the statute required. The return of the officer, shows service upon the •claimant by leaving, at his last andusual place of abode in this state, within thirty days from the time when the commissioners’ report was made and accepted, a legally attested copy of the written notice of appeal which had been duly filed at the probate office.

For some reason, which does not appear, an order of court for new notice to the claimant was entered at a later date. It is urged that the notice, given in pursuance of this order is itself insufficient, and at the same time is a waiver of the first. We do *37not consider its sufficiency. We think it waived nothing.. The requirement of the statute was met without it. The claimant, according to the only evidence in the case, then having his last and usual place of abode in this state, the statute prescribed the notice to be given, and the order of court could add nothing to its requirement. When the terms which the statute imposed were complied with, the appeal was completed, without further conditions.

This statutory notice, it will be seen, was not one that assigned a time and place for hearing — so that, one hearing only being intended, an earlier notice would naturally be regarded as superseded by a later and different one. Its object was to notify the creditor that an appeal was claimed. To give it was a step that must be taken in- order to perfect the appeal. But when the creditor once had the legal notice, we do not perceive on what principle an unsuccessful attempt to repeat it, or to give another, could be said to leave him without the notice which the statute intended.

This ground is sufficiently stated in the reasons for the present appeal from the later decree of the probate court, and the single question reserved must be decided in favor of the appellant.

Exceptions sustained.