¶2Mr. Justice Virgin, Mr. Justice Whitehouse, and myself are unable to concur in the opinion of the majority of the court, and we think the importance of the right of appeal justifies us in expressing our dissent.
¶3An appeal in a probate cause is not the beginning of proceedings by which the court is to acquire jurisdiction over the parties. It is the continuation of proceedings already 'begun, the parties, being already in court either voluntarily or by proper citation. The service of a copy of the reasons of appeal is not the service of an original citation, but is simply an intermediate step in procedure, such as frequently occurs in procedure at law or in equity. In these other cases the notice of the step to be taken is given to the attorney or merely entered upon the docket. It seems a narrow, technical construction of the statute to hold that the legislature intended that probate appeals should be so much more difficult than law or equity appeals.
¶4It will be often exceedingly difficult, and sometimes impossible to find the person himself who has not personally appeared in court, but only by attorney, especially where, as in this case, he was a resident of a distant western state. Such person may be continually changing his abode, or may have left the country and gone to parts unknown. Pursuit of him may be costly and sometimes ineffectual. It is evident that in some cases service upon the person himself, who has never appeared personally in court, or come within its jurisdiction, would be practically impossible. We cannot think, therefore, that the legislature intended to require it.
¶5Section 25 of chap. 63, K,. S., does not meet the emergency above suggested. Under section 24, the appellant appeals as of right as in other procedures. Under section 25 he can only prosecute his appeal by the consent of the court. That consent may be mistakenly denied by a single justice without remedy by exceptions or otherwise. We do not think the legislature intended that an-appellant who could not find the person of a party, who never appeared in person, should lose his right of appeal and become a mere suppliant.
¶6*62But recurring to the language of the statute and reading it by itself apart from the general law of appeals, it does not require such inequitable conclusions. The copy of the reasons of appeal is to be served only on those "parties who appeared before the judge of probate in the case.” Strictly, this appellee did not appear before the judge. He was not within the State. The attorney was the only party in the presence of the judge. The attorney was the party that appeared. A service, therefore, upon the appearing attorney of a non-resident and non-appearing person is a service upon the appearing party. The language of the statute does not require an appellant in probate proceedings to pass by the present, visible, appearing party, because he is an attorney, and search perhaps in vain for the non-resident client, distant, difficult to find, and it may be undiseoverable or even mythical.