19 Wis. 541 | Wis. | 1865
By the Court,
Tbe facts in this case, so far as any question arises on them, are tire same as in that of Sitzman v. Pacquette, 13 Wis., 291. A question, however, somewhat different from any passed upon in that case is presented by tbe counsel for tbe plaintiff in error. They say, grant that Brunson was not in fact administrator de bonis non, yet bis petition as such for leave to sell tbe land of which Pierre Pacquette died seized, tbe notice of tbe application to tbe heirs, and tbe
Judgment of the court below affirmed, with costs.
The plaintiff in error moved for a rehearing, and on that motion his counsel argued as follows: As the petition for the order of sale stated all that the law required, the court was bound to give the petition a hearing; and the power to hear and determine the case upon the allegations made, was jurisdiction. 13 Wis., 303; 10 id., 17. It is said that one of the jurisdictional facts, although alleged in the petition, did not actually exist But the allegations are one thing and the proof of them is another. How can a court know that the j urisdictional facts alleged do not exist, until it hears the case; and how can it hear a case without jurisdiction to hear it ? To say that its jurisdiction depends upon the existence of certain facts, and that it has no jurisdiction to enquire whether those facts do
The motion for a rehearing was denied, and the following opinion filed, on the 27th of June, 1865.
By the Court,
A motion for rehearing having been made in this case, we are asked to reconsider the opinion delivered at the last term of this court. It is maintained that we were mistaken as to the question presented for consideration having been twice passed upon previously by the court. It is true that in the case of Sitzman v. Pacquette, 13 Wis., 241, Chief Justice Dixon took no part in the decision, and that the other judges were divided in opinion, which resulted in affirming the judgment of the court below. The trial in the circuit court was before the chief justice, then circuit judge, and the views taken by him of the record of the county court were affirmed by this court; and subsequently in the case of Showers v. Pacquette the same question was presented, and the
It is again urged that the question, presented is as to the jurisdiction of the probate court to make the order of sale, and that the petition of Brunson for license to sell shows on its face enough to give jurisdiction ; that it alleges that he was administrator de bonis non of the estate of Pierre Paequette, deceased, and all other facts nesessary to show jurisdiction, and that due notice was given to all interested, and that thus everything was fair on the face of the record, and the court had jurisdiction of the subject matter and of the parties, and in ordering the sale necessarily must have decided, and did decide, that Brunson was administrator de bonis non; and consequently that the judgment decreeing the sale is conclusive until it is reversed. The only allegation in the petition for leave to sell real estate, of the official character of Brunson, is the following: “ The petition of the undersigned, administrator de bonis non of the estate of Pierre Paequette, deceased.” It is at least very questionable whether, if an administrator had commenced a suit in any other court than that by which he had been appointed administrator, this could be regarded as a sufficient allegation that he was administrator, and in the probate court it may be considered as a mere reference to his appointment well known to the court, so as to give the court information of the character in which he appeared. It was not necessary that there should be any judgment of the court that he was administrator, and none was given. The court had previously appointed him administrator, and that was equivalent to a judgment of the court that he was administrator. In all sub sequent proceedings in the settlement and administrado of
The motion for a rehearing is overruled, with costs.