Estate of Pfeiffer v. Pfeiffer , 1909 Ill. App. LEXIS 222 ( 1909 )

Mr. Justice Freeman

delivered the opinion of the court.

The only question before the Circuit Court on this appeal was whether the action of the Probate Court upon the guardian’s report should be approved or modified. Under the statute, by the appeal to the Circuit Court the whole case was carried up and was to be tried de novo. R. S., chap. 37, sec. 226; Hazelrigg v. Pursley, 69 Ill. App. 467-469. It was said in Miller v. Miller, 82 Ill. 463-471, which was a case involving the approval of a widow’s award, that “when the case came to the Circuit Court by appeal, the Circuit Court could not properly exercise any power in the case save that which the County Court could and should have done. The Circuit Court properly could only have ordered the estimate of the appraisers to be set aside or have refused to make such order.” In the case at bar the Circuit Court, exercising the power and for the time being the functions of the Probate Court, could approve the account filed by the guardian in the Probate Court, or could direct a new account to be stated as the evidence warranted. Under the statute, probate courts have original jurisdiction in “the appointment of guardians and conservators and settlement of their accounts.” R. S., chap. 37, sec. 220. By the appeal jurisdiction to settle the guardian’s account was vested in the Circuit Court to be exercised de novo. The statute does not provide for a jury trial. The Circuit Court however submitted the matter to a jury. In Schofield v. Thomas, 231 Ill. 114, 119, an appeal from the Probate Court, the question of the probate of a will had been submitted to a jury in the Circuit Court, and the reviewing tribunal said: “The submission was improper, since the statute does not provide for a jury trial and the question was solely for the court. (Moody v. Found, 208 Ill. 78.) There was no judicial determination by the court that the instrument was the last will and testament of Jane Ottman, but the court ordered that the will be admitted to probate.” In the case cited (Moody v. Found) it was said in effect that the jurisdiction to admit wills to probate was never a part of the common law jurisdiction of common law courts, and therefore the constitutional provision that “the right of trial by jury as heretofore enjoyed shall remain inviolate,” was not “intended to introduce the jury system into those special summary jurisdictions which were unknown to the common law.” In the case at bar, the submission to the jury was improper, and it was error to enter judgment against appellant as was done upon the verdict.

Appellant’s attorneys moved to dismiss her appeal to the Circuit Court after the trial and verdict there, and before proceeding to argue a motion for a new trial. The motion to dismiss was not we think made in apt time and was therefore properly denied. Steamboat Delta v. Walker, 24 Ill. 233-235. If appellant should again move to dismiss the appeal after the cause is reinstated in the Circuit Court, of course it may be done.

For the reasons indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.