68 Me. 412 | Me. | 1878
The plaintiff insists that this action for money bad and received is to be regarded as substantially a probate appeal, and so cognizable by the supreme judicial court, which is the supreme court of probate under R. S., c. 63, § 21; and not by the superior court for Cumberland county, which has in that county exclusive original jurisdiction of “all civil actions at law, not exclusively cognizable by municipal courts and trial justices, where the damages demanded do not exceed five hundred dollars,” with certain exceptions which do not touch this case.
If his position is correct, it would follow that all actions commenced against'the administrators of insolvent estates, in pursuance of the provisions of §§ 11, 12, 13, of R. S., c. 66, must be commenced in the supreme judicial court, however trifling the amount involved. Such a result, with its burdensome conse
The true solution of the matter is that this statute action given to one who claims to be a creditor of an insolvent estate, where the commissioners of insolvency decide against him, or where the administrator, an heir at law, or another creditor, gives notice at the probate office of an appeal from a decision of such commissioners in his favor, is not to be regarded as a probate appeal. In cases of dissatisfaction with the decision of the commissioners of insolvency appointed by the probate court, under certain statute provisions and restrictions, the question between the claimant and the estate is transferred from the probate court to a common law court having jurisdiction of the parties and case for decision.
The language of § 25, c. 51, laws of 1821, is this: “ Provided that, notwithstanding the report of any commissioners, any creditor whose claim is wholly or in part rejected may have the same determined at the common law, in case he shall give notice thereof in wilting at the probate office within twenty days after such report shall be made, and bring and prosecute his action as soon as may be.” Like provision is made in the same section, where the executor or administrator is dissatisfied with the allowance of any claim by the commissioners. Subsequent provisions touching the form of the action and the precise time within which it may be commenced, and giving power to the supreme court to permit it to be brought under certain limitations in cases where the claimant has by accident or mistake failed to give his notice or commence his action seasonably, do not affect the jurisdiction, except so far as this is done by their express terms. Nor is it affected by the introduction of the word “ appeal,” which has come about in the condensation of the statutes of 1821, c. 51, § 25. It is not, properly speaking, an appeal from any decree of
Should the court be satisfied, upon notice to the administrator and a hearing, that the plaintiff had a meritorious claim which the commissioners disallowed, and grant leave to commence a suit under the provisions of § 12, it may become necessary to determine what is signified by “ the next term of the court ” mentioned in that section, in a county where there is another court, proceeding according to the course of the common law which has by statute exclusive jurisdiction of a case of this amount. Wo need not now inquire.
Exceptions overruled.