
    John Cannon, Appellant, vs. James McEnanly et al.
    
    PROVIDENCE
    NOVEMBER 17, 1898.
    Present: Matteson, C. J., Tillinghast and Rogers, JJ.
    (1) Appeals from Probate Courts. Filing Reasons out of Time. Irregularity.
    
    The claiming- of an appeal from a decree of a Probate Court, and the filing and approval therein of an appeal bond, together with a claim for a jury trial, removes the case in which the decree was entered from that court to the Common Pleas Division of the Supreme Court.
    If the reasons of appeal are not filed within the statutory period of fifty days, further time therefor, for cause shown, may be granted by the latter court; and it is not essential that the motion for leave to do so be filed within the fifty days.
    
      (2) Defective Heading. Estoppel.
    
    After three jury trials of such an appeal the appellee is estopped from taking advantage of any defect hr the pleadings, unless such defect he jurisdictional.
    (3) Motion to Dismiss. Irregularity.
    
    A motion to dismiss is irregular when made after the case has been certified to the appellate division on petition for a new trial on the ground that the verdict is against the evidence.
    Probate Appeal from a decree disallowing an instrument purporting to be a last will and testament. After verdict for the appellant the appellee petitioned for a new trial and subsequently filed a motion to dismiss on the ground that the reasons were not filed within fifty days from the entry of the decree.
   Matteson, C. J.

The record shows that the decree of the Municipal Court of the City of Providence, disallowing the instrument purporting to he the last will and testament of Mary Cannon, deceased, was entered on September 13, 1895; that the appellant, on September 2d, 1895, filed in that court his claim of appeal, and also an appeal bond which was duly approved by the judge of the court, but that be did not file his reasons of appeal in the Common Pleas Division within fifty days from the entry of the decree from which the appeal was taken; that after the expiration of the fifty days, on December Id, 1S95, the Common Pleas Division, on the appellant’s motion, granted leave to file reasons of appeal, and subsequently the then attorneys of the appellees acknowledged notice of the appeal, the receipt of a copy of the reasons therefor, and also service of summons to appear in the case.

The appellees now move to dismiss the appeal because the motion in the Common Pleas Division for further time in which to file the reasons of appeal was not made within the fifty days ensuing the date of the determination appealed from. They contend that the granting of the motion after the fifty days had elapsed was in excess of the jurisdiction conferred on the court by the Judiciary Act, cap. 28, § 6, as amended by § 89 of the act entitled “An act in amendment of the Judiciary Act, passed May 17, 1895, and which has since been re-enacted, in the same words, as Gen. Laws R. I. cap. 248, § 6, as follows:

‘ ‘ Reasons of appeal, specifically stating the grounds of such appeal, shall be filed in the office of the clerk of the division appealed to, within the period of fifty days from the date of determination appealed from; to which reasons the appellant shall be restricted, unless, for cause shown and with or without terms, the said division allow amendments thereof’and additions thereto. And notice of the appeal, and a copy of the reasons thereof, shall be served on each of the adverse parties, and said notice of appeal shall contain a summons to appear on such assignment-day, and shall be served-on each of the adverse parties at least five days prior to such assignment-d ay : Provided, that for cause shown further time may be granted by any justice of the supreme court, in any county, with or without costs, in his discretion, either to file a certified copy of the record of the proceedings appealed from, or reasons of appeal, or to make seiwice, or further service, as aforesaid, or as directed by the court; and provided generally, that the appellate court may make such other and further order as, in its discretion, the circumstances of the case may require.”

We do not think that the Common Pleas Division exceeded its jurisdiction. The claiming of the appeal, and the filing and approval of the bond in the Municipal Court, and the claiming in that court of a jury trial, removed the case to the Common Pleas Division. Judiciary Act, cap. 28, § 2; Gen. Laws R. I. cap. 248, § 2. The purpose of the reasons of appeal is to notify the adverse party of the gi’ounds of appeal, that such party may be apprised of what he is to meet at the trial. If they are not filed within the period specified, the statute provides that, for cause shown, further time may be granted. This provision was enacted to afford a remedy to a party failing to file his reasons of appeal within the specified time, through accident, mistake, or other cause. Our opinion is, too, that it was not necessary that the motion for further time should have been filed within the fifty days; for if there was time to make the motion within the fifty-days there would ordinarily be no necessity for it, since there would be sufficient time in which to file reasons of appeal; and the purpose of the provision, as already stated, was to afford a remedy in case of failure to file the reasons through accident, mistake, or other cause, which might operate to prevent the filing of a motion for further time until the fifty days had elapsed.

Stephen A. Coolce and Louis L. Angelí, for appellant.

Walter B. ■ Stiness, Edward C. Sti7iess, and James M. Gillrain, for appellees.

This motion comes with poor grace after three jury trials have been had, the last of which resulted in a verdict for the appellant. Having subjected the appellant to the expense of a protracted litigation and taken its chances, the appellees are estopped from taking advantage of any defect in the pleadings, if defect exist, unless such defect be jurisdictional. Tingley v. City of Providence, 9 R. I. 388; Patton v. Hughesdale Mfg. Co., 11 R. I. 188; In Re Washington street, 19 R. I. 156.

Moi'eover, the motion to dismiss is itself irregular, since it does not appear that it was made in the Common Pleas Division, and the case has been certified to'us merely on the appellees’ petition for a new trial on the ground that the verdict is against the evidence.

The motion to dismiss is denied.  