Crane v. Giles

Jul 15, 1864
Reporters:
Before:
Bailey

By the Court,

Bailey, J.

This case is brought before the Gourt on a petition in error to reverse a final order of the Probate Court of Shawnee county, disallowing a sale of lands belonging to the estate ‍​​‌​​‌​‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌​​‌‌​​​‌‌‌​​‌​​​‌​‌‌‌​​‌​‌‌‌‌‍of defendant’s intestate.

This court declines to entertain jurisdiction of the cause for the following, among other reasons :

I. Because we are unable to find any provision of law authorizing a petition in error from the Probate Court to this court.

II. Because section 525 of the Code of Civil Procedure provides that a “judgment rendered or final order made by the Probate Court, may be reversed, vacated or modified by ‍​​‌​​‌​‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌​​‌‌​​​‌‌‌​​‌​​​‌​‌‌‌​​‌​‌‌‌‌‍the District Court for errors appearing on the record.” See also sec. 523 of Code.

III. Because section 10 of article 3 of the Constitution of this state declares, that “ all appeals from Probate *55Courts and justices of the peace, shall be to the District Court.

An appeal, as defined by “Webster, is “the removal of a cause from an inferior to a superior tribunal, as from a common pleas court to a superior ‍​​‌​​‌​‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌​​‌‌​​​‌‌‌​​‌​​​‌​‌‌‌​​‌​‌‌‌‌‍or snpreme court.”

Worcester defines it to signify in law “a removal of a cause from an inferior to a superior court or jurisdiction for the purpose of re-examination.”

To the same effect, Jacobs in his Law Dictionary, remarks that, “ it signifies the removal of a cause from an inferior court or judge to a superior.”

These authorities are sufficient to show that the term “ appeal ” as used in ‍​​‌​​‌​‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌​​‌‌​​​‌‌‌​​‌​​​‌​‌‌‌​​‌​‌‌‌‌‍the constitution, is a general term denoting not only what are technically denominated appeals, as contra-distinguished from a certorari writ of error or petition in error, but any proceeding by which a cause is sought to be removed from probate and justice courts to superior tribunals for the purpose of re-examination, and thereby precludes the jurisdiction of this court in the case at bar. The manifest object of the provision being ‍​​‌​​‌​‌‌​‌​​‌‌​‌​​‌‌​‌​​‌‌‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌​‌‌​‌‌​‌​​​‌‌‌​​​​​​‌​​‌‌​​​‌‌‌​​‌​​​‌​‌‌‌​​‌​‌‌‌‌‍to enable parties to obtain justice in their own county without being subjected to the trouble and expense of a suit in the Supreme Court, except in case of necessity.

Petition is dismissed.

All the justices concurring.