21 Fla. 36 | Fla. | 1884
delivered the opinion of the court.
It was said in Emerson vs. Ross, 17 Fla., 122, 127, that the Probate Judge had a general and exclusive cognizance of the matter of granting letters of administration. That the only facts necessary to give the Probate Court jurisdiction were the death of the intestate and possession at the
In Price et al. vs. Winter, 15 Fla., 66, 99; the court, upon the jurisdiction of the Probate Court being questioned in a collateral proceeding, examined the record and proceedings in the Probate Court to ascertain whether it had jurisdiction of the matter in question and of the parties.
In Budd vs. Long, 13 Fla., 309, it was said that a collateral inquiry into the regularity of proceedings of a court of record will not be allowed except to show an absence of jurisdiction.
“ It is well settled,” says Mr. Justice Field, in Comstock vs. Crawford, 3 Wall., 403, “ that when the jurisdiction of .a court of limited and special authority appears upon the face of its proceedings, its action cannot be attacked for mere error or irregularity. The jurisdiction appearing, the same presumption of law arises that it was rightly exercised as prevails with reference to the action of a court of superior and general authority.”
The question then before the court was the action of a Probate Court in the appointment of an administrator. 'The court say further, “ that the sufficiency of the proof upon which the court took its action is not a matter open to con-sideration in a collateral manner. It does not touch the •question of jurisdiction.”
In Alabama, it is said, “ as this (the County Court) is a •court of limited jurisdiction everything necessary to give •the court jurisdiction should appear on the record; it must
The presumptions indulged in support of the judgments of superior courts ofgeneral jurisdiction arises with respect to jurisdictional facts concerning which the record is silent. These presumptions attach to proceedings which are in accordance with the course of the common law. Gilpin vs. Page, 18 Wall., 350, 365.
These general rules, sustained by a mass of authorities, will not be seriously questioned. "Nor can it be questioned that the Probate Court, though it is a court oí general and exclusive jurisdiction in the matter of granting letters of administration, is not a court of general jurisdiction of “ proceedings in accordance with the course of the common law.” Its jurisdiction is expressly defined and limited by the Constitution and statutes of the State. And it may acquire jurisdiction in the manner prescribed by law; and not by a resort to presumptions not growing out of patent facts.
Letters of administration are prima jade evidence of the official title of the administrator,"but if the order of the court granting the letters be made without having first obtained jurisdiction of the particular case, and the absence of it.appears by the record, presumptions cannot be indulged in to supply the deficiency.
The finding of a domestic court of general jurisdiction in regard to jurisdictional facts on which its judgment is based is conclusive against all collateral attacks, except in cases where the record of its own proceedings disclosed their nullity by showing that jurisdiction had never attached in the particular case. Brockenborough vs. Melton, 55 Texas, 493 ; Arnold vs. Arnold, 62 Ga., 627 ; Taut vs.
This is the approved general doctrine in nearly all the States. The courts in Wisconsin and Kansas seem to permit an inquiry into jurisdictional facts, by plea and proof, for the purpose of impeaching jurisdiction. A similar rule formerly prevailed in Massachusetts at an early day, but it was changed by the Legislature.
The above rule as generally established in this country is subject to two exceptions, viz: where the supposed intestate is not dead; and where there is an administrator already legally in office. Griffith vs. Frazier, 8 Cr., 9, 23 ; Andrews vs. Avery, 14 Grattan, 229, 236.
Now the first plea avers that the jurisdictional facts were wanting, and that the appointment of the administrator “ was without any authority of law or jurisdiction in said County Court of Escambia county, as appears upon the face of and by the records of said County Court.”
The demurrer to this plea admits, for the purposes of pleading, that the jurisdictional facts did not exist and that this appears by the record of the County Court. The judgment of the Circuit Court overruling the demurrer to the first plea was therefore correct.
The statute prescribes the cases in which the County Court may grant letters of administration. McClellan’s Dig., 77, Act of Nov. 20,1828. The Act of Aug. 4,1868, ch. 1627, McClellan, 326, provides the method of bringing matters beiore the court for its action, to wit: by petition
Applying the doctrine of presumptions as already stated, it will be presumed that the matters of fact alleged before the County Court were adjudicated, and it will not be presumed that other facts not brought before the court were passed upon.
As to the demurrer to the second plea: This plea avers that Hirschfelder died out of this State and was not possessed of any goods, chattels or lands in the county of Escambia, nor were there any debts due him from persons living in the county for the collection of which Tate or any other person produced or had legal authority from the representatives of the deceased to be appointed administrator.
The letters of administration are prima facie evidence of the adjudication of the facts necessary to give jurisdiction.' The proceedings before the County Judge are not embodied in the record hei’e.
This plea does not show that the necessary averments or facts were not presented to the County Court, nór that the record of that court shows that the County Court had no jurisdictional facts before it to authorize its judgment.
In the absence of the record of proceedings of the County Court we must presume, from the granting of the letters,
The defendants cannot now he heard to prove by testimony aliunde that record that the tacts adjudicated by the judgment of the County Court were not true except to show that the supposed intestate is living, or that letters have been legally granted.
There is no allegation of fraud in the procurement of the letters.
As to the averment that Tate was not authorized by representatives of the deceased to obtain letters for the purpose of collecting debts due to the deceased, that also 'is a fact which may appear bjr the record of the proceedings before the County Court to have been adjudicated. But if the ■assets were merely debts due, and if these are “ goods,” as expressed in the statute, it is not essential that special letters be procured upon the suggestion of the representatives, though the statute provides that this may be done. Neither the statute authorizing special administrators to be appointed at the instance of the legal representatives, nor the law which authorizes foreign administrators to sue in this State for the collection of debts, is exclusive, but they are cumulative if there is any authority under the statute for appointing a general administrator in this State for this purpose. Moore vs. Tanner’s Admr., 5 T. B. Mon., 42; Arnold vs. Arnold, 62 Ga., 637.
The statute provides for administration in this State when the person dies out of the State possessed of any goods,chattels •or lands in any county in this State, and administration may •be had in any county where any part of such goods, chattels or lands may be. McClellan’s Dig.,p. 77, sec. 3.
Counsel on both sides agree that this is the proper effect •of the statute.
Ve conclude from the pleadings and arguments of coun
The question then is, are choses in action or evidences of debt “ goods,” within the meaning of this statute ?
The word “ goods,” as a technical term of the law, is nomen generalissimum, and has very extensive meaning. In a will, where there is nothing to restrain its operation, it includes all the personal estate of the testator. Keyser vs. School District, 35 N. H., 477, 483; 1 Jarman on Wills, 692; Chamberlain vs. Trans. Co., 44 N. Y., 310.
In Tisdale vs. Harris, 20 Pick., 9, it is held that a contract for the sale of shares in an incorporated company was a contract for the sale of goods, wares and merchandise, and within the statute of frauds. To the same effect Calvin vs. Williams, 3 H. & Johns., 38 ; Balwin vs. Williams, 3 Met., 365 ; Ayres vs. French, 41 Conn., 142.
“ Goods and chattels,” in contracts, includes not only personal property in possession, but written instruments of value relating to business matters. Gibbs vs. Usher, 1 Holmes U. S. C. C. R., 348. It includes choses in action and chattels real. Bouvier ; Ford & Sheldon’s case, 12 Coke, 1. In an act of Parliament “ goods and chattels take in choses in action. Ryal vs. Rolle, 1 Atk. Ch., 182. And see 2 Wms. on Executors, 1178, 6 Am. Ed., by Perkins, and notes.
A bequest of u all my worldly goods,” words very frequently used in the making of wills, would assuredly carry all evidences of debt and money due from debtors. And the statutes relating to wills and administration, where the term “ goods and chattels” are used, should be construed by the same rule. The term, therefore, includes choses in action, notes, bills and other evidences of debt; and the county in this State where the debtor resides may be the
The second plea does not aver or show that facts necessary to confer jurisdiction were not presented to and adjudicated by the County Court in granting the letters, as appears by the record of its proceedings, and the demurrer thereto should have been sustained.
The judgment overruling the demurrer to the second plea is erroneous.
The replication to the first plea was properly overruled by sustaining the demurrer thereto, because it was not responsive. It did not allege the existence of assets, nor that the County Court adjudged the existence of assets.
The demur to the replication to the second plea should not have been sustained, because the plea itself was not good in law; and any replication to a bad plea is a good replication. The defendants demurrer reached the faults in his own plea.
The judgment is reversed and the cause remanded with directions to enter judgment sustaining the demurrer to the second plea, and that the demurrer to the replication to the second plea be overruled, and that the parties be allowed to amend their pleadings in due time, as they may be advised, and according to the practice of the court.