Jackson v. Gorman , 70 Ark. 88 ( 1902 )

Bunn, C. J.

This is a proceeding commenced by H. P. Gorman, administrator in succession to James Evans, first administrator of H. Evans, in the probate court of St. Francis county, on the 15th day of January, 1900, by filing a petition to fix another day for the sale of the lands of the estate of said H. Evans, deceased, to pay the debts thereof. The appellants, Mary E. Jackson, and the other heirs at law of H. Evans, on leave asked and obtained, were made parties defendant to this petition; and thereupon they demurred to the petition, and, their demurrer being overruled, filed their answer, to which answer the petitioner interposed his demurrer, which was sustained. The defendants appealed to the circuit court of St. Francis county, and therein filed their amended answer and cross bill, and asked that the cause be transferred to the chancery court of the district. The petitioner interposed his demurrer to this amended answer and cross bill, and resisted the motion to transfer. The demurrer of the petitioner was sustained by the court, and the motion to transfer overruled, and the defendants appealed to this court.

The chancery courts are in no sense appellate coiirts in this state, for there are no courts inferior to them which have chancery jurisdiction. In this ease it was sought to invoke a jurisdiction on appeal which can only act by original bill, or in cases where the code provides for a transfer of cases commenced on the law side of the circuit court by mistake to the proper docket or forum. To transfer a ease on appeal, where the appellate court tries de novo, is to change the cause of action by amendment from what it was in the court of original jurisdiction to a new and different action, Avhieh AAre think cannot be done. Therefore there Avas no error in the refusal by the circuit court to transfer.

The amended ansAver and cross bill is mainly an attack upon the validity of the orders of the probate court allowing claims against the estate under the administration of James Evans, now also deceased, and made years ago. These alloAvances are in the nature of judgments, and after the expiration of the term are not Avithin the control of the probate court. It IoIIoavs that to attack them in the probate court would be in violation of all rules on the subject. The circuit court on appeal can have no other issues before it than had the probate court from which the appeal is taken. These judgments of the probate court, moreover, were final, after the expiration of the term at Avhieh they had been rendered, and could not be reopened by the probate court, and could only be called in question by appeal, or by original bill in chancery, on the allegation of fraud, accident, or mistake. Clark v. Shelton, 16 Ark. 474; Dooley v. Dooley, 14 Ark. 122; West v. Waddill, 33 Ark. 575; Rogers v. Wilson, 13 Ark. 507; Carter v. Engles, 35 Ark. 205.

The other paragraphs of the amended answer and cross bill constitute an attack upon the manner of obtaining the order of sale July 21, 1897, in this, that the petitioner did not make the showing required by statute to obtain the order. The probate court had acted, and, presumptively, upon the proper showing-made, and the term had passed without objection raised; and the conclusion is that everything was properly done. Besides, if it be at all necessary to so state, the record does not show that there was a substantial failure on the part of the petitioner to comply with the statute.

TJpon the whole case, the decree is affirmed.

Riddick, J., did not participate.