| Colo. | Dec 15, 1888
Upon this rehearing the principal questions presented for our consideration are: (1) Do writs of error lie from the supreme court to the county court in cases of this kind? (2) Was there a May teym of the county court of Arapahoe county for 1877, provided by law, to which a summons issued under section 98, chapter 90, Revised Statutes 18G8, comrhonly called the “Statute of Wills,’'’ might be made returnable? (3) If the foregoing questions be answered affirmatively, were the proceedings sought to be reviewed in this case regular, and was the judgment or decision of the court therein valid, or was the same prematurely rendered?
Since the adoption of the constitution (art. 6, § 23), and the passage of the county court act (Gen. Laws, ch. 23, § S), which went into effect June 20, 1877, there is no longer room for reasonable doubt that writs of error lie from the supreme court to every final judgment or decree of the county courts, including cases of this kind. It may still be difficult to determine what matters are to be considered in the record when cases like this are sought to be reviewed upon writ of error. The opinion in the case of Vance's Heirs v. Rockwell, 3 Colo. 240" court="Colo." date_filed="1877-04-15" href="https://app.midpage.ai/document/vances-heirs-v-rockwell-6560719?utm_source=webapp" opinion_id="6560719">3 Colo. 240, pronounced at the April term, 1877, is direct authority to the effect that cases of this kind may be reviewed upon error, on the ground that the judgment or decision is final. It was the precise point before the court; but neither that opinion nor the subsequent ones (3 Colo. 293" court="Colo." date_filed="1877-04-15" href="https://app.midpage.ai/document/vances-heirs-v-maroney-6560732?utm_source=webapp" opinion_id="6560732">3 Colo. 293, and 4 Colo. 47" court="Colo." date_filed="1877-12-15" href="https://app.midpage.ai/document/vances-heirs-v-maroney-6560804?utm_source=webapp" opinion_id="6560804">4 Colo. 47) expressly decide what proceedings, if any, in the course of administration antecedent to filing of the petition, may be reviewed upon a writ of error sued out for the purpose of testing the validity of the decree of sale; and, inasmuch as we find no error in such
In the case of Vance’s Heirs, supra, the opinion was expressed that the law still remained in force providing terms of the probate court commencing on the first Monday of each month, notwithstanding six terms were provided by the act of 1865 for the first Monday of alternate months; but it was considered in the opinion that the regular monthly terms of the court were for the exercise of its probate jurisdiction, and not for its enlarged common-law and chancery jurisdiction, and proceedings under the statute of wills to sell real estate, etc., were classed as belonging to such enlarged jurisdiction. The act of March 11, 1864, was cited as, indicating that different terms of court were intended for different kinds of business, whereas by section 8 of that act the terms of the probate court were expressly declared to be the same for the supposed new jurisdiction as for the former probate business; and no act has been cited providing separate terms of the probate court for probate business prior to the act of March 22,1877, which did not go into effect till the 20th of June following. But we must not be understood as holding that the monthly sittings of the county judges on the last Monday of each month, as required by the last-mentioned act, are to be regarded as terms of court to which process issued under section 98 of the statute of wills must be made returnable. The learned judge who delivered the opinion in Vance’s Heirs, supra, seemed to think it necessary to make this distinction regarding separate terms for different jurisdictions in order to escape the conclusion announced in Hadley v. Fish, 3 Colo. 51" court="Colo." date_filed="1876-02-15" href="https://app.midpage.ai/document/hadley-v-fish-6560675?utm_source=webapp" opinion_id="6560675">3 Colo. 51, to the effect that writs of error do not lie to review judgments of a court in a summary proceeding not in accordance with the course of the common law. But it seems to us that it was only necessary then, as now, to hold that a decree for the sale of real estate to pay debts
By the act of 1862, page 97, the territorial legislature conferred jurisdiction of the kind of proceedings now under consideration, though by a different procedure, exclusively upon the probate courts, without any mention as to change of terms of the court; and at that time the probate court had no chancery jurisdiction, nor any jurisdiction above that of a justice of the peace except its probate jurisdiction. The enlarged jurisdiction was not conferred until after the amendment to the organic act in 1863. Thus it is seen that the legislative intent was clearly against the supposed distinction, and supports the theory that proceedings of this kind are not to be classed as a part of the enlarged common-law and chanceiy jurisdiction of the probate courts. While we thus depart from the reasoning of the learned judge in the case of Vance's Heirs, we nevertheless uphold the opinion so far as the essential points therein decided are concerned. We accept it as decisive to the effect that decisions of the county courts in proceedings under the statute of wills for the sale of real estate to pay debts of decedents are final judgments; that they may be reviewed by this court upon writ of error; and also that prior- to June, 1877, terms of the probate court for the first Monday of every month were provided by statute. By an examination of the various acts it will be found that the probate courts at these terms were not restricted to the exercise of their probate
Previous to the revision of 1868 such proceedings were commenced by publication of notice merely. Statutes of Wills, 1861, p. 427, § 94 et seq. After the revision they were commenced by summons, and certain persons were required to be made defendants, but the object of the proceeding was always the same. It was to divest the title to real estate in which such defendants were supposed to be interested as heirs, devisees or otherwise, and so the-final judgment or decision to be rendered was most important. Under the constitution, as well as under the organic act, the proceeding may be said to be purely statutory; but this in no way militates against the theory that it is within the jurisdiction of the county court at any term when such court is lawfully convened. The constitution, article 6, section 23, expressly limits the civil jurisdiction of the county courts to be conferred by law to cases where the debt, damagé or claim or value of property involved shall not exceed $2,000; but as to the settlement of estates -of deceased persons, as well as all matters of probate, etc., the jurisdiction is unlimited. Prom this the conclusion is almost irresistible that a proceeding of the kind now under consideration is not to be
One further question remains to be considered: Were the proceedings regular and was the judgment valid, or was the same prematurely given? The preliminary steps, such as the filing of a proper petition, the issuance of summons, alias summons, with proper effort to serve the same, and the return thereof, the filing of an affidavit as to the non-residence of certain defendants, and the due publication of notice to the non-resident defendants, seem to have been taken in substantial compliance with the statute; also the continuance, the appointment of a guardian ad litem for the minors, and the hearing, decree, sale and confirmation thereof, appear to have been regular. Vance’s Heirs v. Maroney, 4 Colo. 41; Rowand v. Carrol, 81 Ill. 224" court="Ill." date_filed="1876-01-15" href="https://app.midpage.ai/document/rowand-v-carroll-6958794?utm_source=webapp" opinion_id="6958794">81 Ill. 224; Tibbs v. Allen, 21 Ill. 124.
One objection only requires particular notice. Section 103, chapter 90, Eevised Statutes, aforesaid, provides in substance that if, in cases where notice by publication is permitted, the first publication be not at least sixty days before the day named in the summons, the cause shall stand continued until the next succeeding term of the court. The summons in this case was issued early in April, and was made returnable the first Monday of May;- and, as sixty days had not elapsed, the cause stood continued until the next succeeding term in June, and thereafter, and on June 23d, the court ordered and decreed the sale of the real estate. It is argued with some force that still another continuance to the July term should have been granted, as there were not sixty days intervening between the issuance of the summons and the first day of
The former opinion is withdrawn, and the judgment of the county court is accordingly affirmed.
Affirmed.