110 Ill. 78 | Ill. | 1884
delivered the opinion of the Court:
The petition in this ease was presented by Margaret Ennis in the circuit court, and was for a common law writ of certiorari, to bring before that court certain proceedings had in the probate" court of Cook county, that the same, on inspection, might be quashed and held for naught. It appears from the allegations it contains, that petitioner was lawfully married to James Ennis, since deceased, who at the time of his death left him surviving petitioner, his widow, and nine children by a former marriage, and one child by his marriage with petitioner, all of whom were minors at the time of his death, except, perhaps, one or two of his first children, and who resided with him and constituted a part of his family ; that afterwards such proceedings were had in the probate court that letters of administration were granted to petitioner and Lawrence M. Ennis, and on appraisers being appointed, as the law directs, they set apart the “widow’s award, ” in value $1960. The grievance alleged is, that subsequently, on the 3d day of June, 1881, the probate court “divided” or “apportioned” the “widow’s award, ” giving to petitioner and her child by her marriage with James Ennis, since deceased, $750, and to the seven minor heirs of her deceased husband by his former marriage, $1210. It is that order of the probate court so entered that petitioner seeks to have quashed and held for naught in this proceeding. It is thought this can not be done on a common law writ of certiorari. The proper remedy for a party aggrieved in such case would be on appeal to the circuit court. Undoubtedly the probate court has general jurisdiction in all matters touching the settlement and administration of the estates of deceased persons, and orders concerning the “widow’s award” come within the scope of that general jurisdiction. It is not necessary now to consider whether the probate court proceeded irregularly in making the order complained of, as that question can not be adjudicated in this proceeding. The law is, a common law' writ of certiorari will only lie to inferior tribunals or jurisdictions in cases where they proceed illegally, as it is alleged the probate court did in this instance, where no appeal or other mode of directly reviewing their proceedings is provided or exists under the law. (Miller v. Trustees of Schools, 88 Ill. 26.) In cases like the one being considered, the statute has expressly given a remedy for any érror committed by the probate court, by an appeal to the circuit court, as this court has decided in Ennis v. Ennis, 103 Ill. 95. The writ of certiorari was therefore properly quashed, as was done by the circuit court.
The errors assigned in this court only call in question the decision of the Appellate Court in affirming the “final order and judgment of the said circuit court * * * quashing the common law writ of certiorari issued, and dismissing said appellant’s petition therefor. ” It will be perceived the errors assigned are not broad enough to embrace the question whether the circuit court erred in awarding costs against petitioner, and in favor of Lawrence M. Ennis, on the dismissal of her petition, and the correctness of that order, will not be considered in this court. Petitioner not having assigned it as error in this court, the point made in the Appellate Court as to costs may be deemed to have been waived in this court.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
