98 Ill. App. 78 | Ill. App. Ct. | 1901
delivered the opinion of the court.
The appeal of Thompson, the appellee, was, as appears from his appeal bond, from a judgment of the Probate Court allowing a claim in favor of Joseph N. Barker, administrator de bonis non, with the will annexed, of the estate of James Eeid, deceased. ■ At the time the judgment was rendered there was no transcript before the court, showing the allowance by the Probate Court of any claim in favor of the administrator de bonis non, etc., of the estate of James Eeid, deceased. The only allowance of any claim by the Probate Court shown by the transcript on file in the Circuit Court, when the judgment of May 9, 1899, ivas rendered, was a transcript showing the allowance of a claim of Joseph H. Barker, administrator de bonis non of the estate of Isabella H. Thompson, deceased. When one files a claim as the administrator of an estate, against another estate, he does so in his representative capacity, and if the claim is allowed, it is allowed to the claimant in his representative capacity, and in favor of the estate which he represents, and it is manifest that the allowance of a claim to one as the personal representative of Thompson, deceased, can not be held to be an allowance of a claim to one as the personal representative of Iieid, deceased.
The practice on appeals from the Probate Court to the Circuit Court is the same as on appeals to the latter court from the judgments of justices of the peace. Hurd’s Stat. 1899, Chap. 3, Sec. 66, Chap. 37, Sec. 8, pp. 116, 548.
There being no transcript of any judgment such as that appealed from, the court had not jurisdiction of the subject-matter when the judgment was rendered, and could not then try the cause. Reed v. Driscoll, 84 Ill. 96; Sheridan v. Beardsley, 89 lb. 477; McGillen v. Wolff, 83 Ill. App. 227.
The court not having jurisdiction to render the judgment of May 9, 1899, it had power, at a subsequent term, to set it aside (Keeler v. The People, 160 Ill. 179, 182), and appellant’s motion should have been granted. We think it probable that the attention of the judge of the Circuit Court was not specifically called to the fact of the absence of a transcript showing the judgment appealed from by Thompson. A supplemental transcript filed here shows that November 1,1900, the Probate Court amended its judgment of May 18,1898, so as to show a claim allowed against the Thompson estate in favor of Joseph N. Barker, administrator do bonis non, with the will annexed, of the estate of James Reid, instead of in favor of Barker, administrator with the will annexed of' the estate of Isabella H. Thompson; but no transcript of the amended judgment was filed in the Circuit Court until December 28, 1900, nearly two months after appellant’s motion to vacate had been overruled by the court. Therefore we have not considered the amended judgment of the Probate Court on this appeal.
The order overruling appellant’s motion to vacate and set aside the judgment of May 9,1899, will be reversed and the cause will be remanded for further proceedings, in accordance with this opinion. Reversed and remanded.
