1 Idaho 55 | Idaho | 1866
delivered the opinion of the court,
This was an action in replevin, originally commenced and tried in the justice’s court for the recovery of specific per
From tbe judgment of tbe district court disallowing tbe motion filed in tbe probate court, and declaring that that court could legally exercise appellate jurisdiction, tbe plaintiff appeals to tbis court. Upon tbis state of facts, tbe respondent files a motion to dismiss tbe appeal upon tbe grounds: -
1. That there is no evidence in tbe record or transcript from tbe court below of service of tbe notice of appeal on tbe respondent.
2. There is no judgment of tbe court below (meaning tbe justice’s court) from which an appeal will lie.
As to tbe first point raised by tbis motion, it is true tbe record does not show or contain those facts necessary to constitute legal service of a notice. A certified copy of tbe notice of appeal is set out in tbe transcript, together with a certificate of tbe clerk that tbe appeal was “duly taken to tbe supreme court by the filing and service of tbe proper notice,” etc. Tbe rule is well understood that it is for tbe court and not for tbe clerk to determine wbetber an appeal has been properly taken. It is tbe duty only of tbe clerk to
Though it does not affirmatively appear on tbe papers in this court that due service of tbe notice of appeal was bad upon tbe respondent, yet we do not deem tbe objection here well taken. Tbe object to be attained by a notice of appeal and service of tbe same, is to notify tbe respondent that an appeal has been taken, and of tbe court in which be is to appear to oppose tbe reversal or modification of tbe judgment or order by which tbe appellant alleges be has been aggrieved.
It is a well-established rule of law, upon principle as well as authority, that if a party appear in a suit or proceeding, be thereby cures or waives whatever defects may exist in tbe original process itself necessary to bring a party into court, or whatever irregularity may have occurred in tbe service of such process. A voluntary appearance in a suit is as effectual for any purpose as due service of process. Tbe supreme court of tbe United States, in tbe case of The United States v. Gurry et al., say that “tbe appearance of tbe defendant in error, by attorney, in tbe appellate court, superseded tbe necessity of a citation; and after such appearance no advantage can be taken of tbe want of a citation, even though tbe attorney, for special reasons, should be allowed to withdraw bis name.” (See United States v. Curry et al., 6 How. 106.) It is proper here to remark that tbe citation there referred to is nothing more than a formal notice to tbe defendant in error, and answers to our notice of appeal. In the case before us, tbe respondent, by bis attorney, has appeared and filed a motion, as before stated, not only raising tbe question of tbe legal sufficiency of tbe service of tbe notice of appeal, so far as tbe facts contained in tbe record are concerned, but also raising the question of tbe legal sufficiency of tbe judgment in tbe
A respondent ought not to be permitted to come into an appellate court and raise objections going to the substantial merits of the case, on a motion to dismiss the appeal, and at the same time contend that he is not in court; that the court has not jurisdiction of the matter in controversy, by reason of a want of due service of the process or notice necessary to bring the respondent there. A party, therefore, appearing generally in a case on appeal in this court, thereby waives all informalities in the notice of such appeal, or want of service of the same.
It will be unnecessary to pass upon the second objection raised by respondent’s motion, as it will be proper first to examine into and pass upon the question of the appellate jurisdiction of the probate court involved in the record, which the court below determined in the affirmative on a motion from that court. The determination of this question will dispose of the case in this court.
This cause was instituted in the justice’s court on the seventh day of November, 1868, and by agreement of parties entered of record and heard on the same day. The defendant filed his notice of appeal on the same day, and procured service of the same upon the plaintiff on the ninth, as appears from the sheriff’s return on the same. The appeal, as the record shows, was taken to the probate court before the convening of the first session of the legislative assembly— hence, prior to the enactment of a code of procedure, civil or criminal, for the territory. It is, therefore, presumed that the parties were governed by the statutes of Washington territory, in force in Nez Perce and other counties segregated from that territory by the act of congress of March 3, 1863. From an examination of these statutes, it will be found that they did authorize an appeal to the pro
The probate courts established by that act are also tribunals of limited jurisdiction. They exist in some form or other in every state and territory composing our government, and the general nature and powers of the same are as well understood and as clearly defined as are those of other courts above enumerated. The very names or terms by which these courts are designated have a clearly defined and well-known signification or meaning in our jurisprudence. The mere mention of the title of the court conveys to our minds clear preceptions of its power and jurisdiction. The probate courts, it is well understood, ex vi termini, have been established for the proof of wills, for the general management and final settlement of decedents’ estates, for the general supervision of guardians and their wards, and all other matters legitimately pertaining to this class of business. The nature and scope of authority, here indicated as possessed by the probate court, are as well understood by the term designating that court as are either of the other courts known to our judiciary system. And yet no one would contend for a moment that because the legislature are not inhibited by express terms-, therefore they may confer, for instance, chancery powers upon justices’ courts. Still the only plausible argument which is or can be urged to sustain the proposition that the legislature may confer upon or invest the probate courts with civil or appellate jurisdiction, is founded upon the absence of any express prohibition, in the organic act establishing these courts, against the granting of such power.
The conclusion from the foregoing is, then, but reasonable and proper, that when congress used the terms by which they designated the several courts they established in these territories, and in distributing the power among them, they intended to and did use those terms by which these courts are denominated with reference to their well-known and uniformly accepted definition, and that they intended to confer upon and invest these courts respectively with such jurisdiction and power only as legitimately and
The judgment of the district court is reversed, and the cause is remanded, with instructions that the appeal in that court be dismissed.