| S.C. | Apr 17, 1882
The opinion of the court was delivered by
Dr. F. S. Lewie, late of Lex
Shortly after his death the respondent left the county and found employment in Washington city, in the Treasury Department of the United States Government. She was under the impression that the estate was solvent, and that she would ultimately realize something from the will. Creditors, however, commenced proceedings and- the estate turned out not only heavily indebted, but insolvent, and under a proceeding which had been originated in 1875 to marshal assets, etc., she came in by petition and obtained the sum of $1,437.50 in lieu of dower in the real estate of her husband. In the mean time the creditors had sold the whole estate, except a tract of land in the county containing some 200 acres, known as the Hall or Black Alimón tract, worth, it is said, about $300; a lot in Summit, of little value, given in the will to one W. F. Oswalt; and one third interest in a small lot of five acres in or near Columbia. At the sale made by the executors in 1874 the homestead at Summit was bought by the appellant Drafts for $1050. Drafts has since sold this property to J. IT. Lewie for $500. Subsequent references have developed the fact that the appellants as executors have paid for the estate something over $6000 more than they have received. This was because they were sureties on many of the debts due by the estate.
Under these circumstances the .respondent filed her petition in the Circuit Court in May, 1880, for homestead. The matter was referred by Judge Hudson to a referee for a full report of all the facts connected with the estate, reserving the question of the jurisdiction of this court over the matter of assign
The referee made a second report in January, 1881, in which with other facts, not material here, he stated that the respondent left Summit very soon after the death of her husband in 1813, and'since that time has resided elsewhere, with no intention to return; that she had claimed and received dower; that the executors had been in constant communication with her and had never received intimation of her purpose to claim homestead until this proceeding.
This report, with certain exceptions by respondent, came to a hearing before Judge Aldrich, who, finding as matter of fact that the respondent had not left the county permanently and had not abandoned her home, adjudged and decreed that she was entitled thereto, and ordered the executors, appellants, te set her off a homestead both real and personal. The precise property out of which this was to be done was not specified. The defendants executors have appealed, assigning error in the decree of Judge Aldrich on several grounds; but from the view which we take of this case it will be unnecessary to state or consider these grounds.
In our opinion the Circuit Court was without jurisdiction of respondent’s petition in its inception. This question does not seem to have been distinctly made below or in the argument here, but in our examination we have reached the conclusion that the Circuit Court had no jurisdiction, and therefore no appeal upon the merits could properly come before this court. It is therefore useless for ns to pronounce any judgment upon the legal questions involved. The Court of Common Pleas is the general fountain of justice, and where the rights of a citizen, either derived from the common law or the statutes, are invaded and the power' to protect is conferred upon no special jurisdiction, he may seek redress in that court. But where rights are created by statute, to be obtained and protected in a special manner specified in the act and by a
Our conclusion, therefore, is that the petition of respondent, whatever may be the merit involved or the rights of the parties, had no foundation in the Circuit Court because of the want of jurisdiction on the part of that court, and the case ■should have been dismissed.
It is the judgment of this court that the judgment of the Circuit Court be reversed, and the case be remanded with instructions to dismiss the petition for the want of jurisdiction, without prejudice to the rights of the petitioner in such proceedings as she may hereafter institute, as she may be advised.