Wheelhouse v. Bryant , 13 Iowa 160 ( 1862 )

Lowe, J.

— Suit on administrator’s bond, which ended in sustaining a demurrer to plaintiff’s petition, and dismissing the cause, upon the ground that the District Court had no original jurisdiction of this class or character of cases, but only appellate, when the cause is transferred by appeal from the court of the j udge of probate for revision or correction. This, we think, is simply a misapprehension. The judge of probate, to be sure, has jurisdiction over the administration and settlement of the estates of decedents; but there is nothing in the statutes defining the duties and powers of this tribunal, that gives it the exclusive jurisdiction over the various delinquencies for which an administrator is liable on his bond, and unless there is some such express provision, the general original jurisdiction of the District Court over the subject in controversy cannot be affected. The rule upon this point, heretofore recognized by this court (3d Iowa, 125), and other courts and elementary law writers, is: “ That nothing shall be intended to be out of the jurisdiction of a superior court but that which especially appears so.” There are some defaults or failures in regard to which, without doubt, the two courts have concurrent jurisdiction in a proceeding upon the bonds.

■ Sections 1387-8-9 authorize the judge of probate where there has been a failure to make payment of any kind in accordance with the order of the court, to summon the administrator and his sureties on the bond before him, at a time to be specified, to show cause why they have failed to comply with his order; if no sufficient cause can be shown, the court has power to render a judgment on the bond for the amount of money directed to be paid, and may issue execution accordingly.

This power was wisely conferred upon the judge of probate, to enable him to make effectual an order which had been previously entered in regard to the payment of money on hearing, and upon settlement found to be'in .the hands of the executor. We are to suppose that the executor was satisfied with the order, otherwise he would have appealed, as it was his privilege to do.

Having had then a hearing upon the order made, and taking no exception to the same, should the parties entitled to receive the money be left entirely to the mercy of the executor to comply, or not to comply with said order, according to his own pleasure ? Certainly not; and while the wisdom of the summary remedy prescribed in the sections of the Code referred to, for forfeitures of that particular class is to be commended, it by no means follows that the Probate Court has exclusive jurisdiction over all the delinquencies which an executor may be responsible for on his bond.

Suppose the executor complies with all the orders and requirements of the Probate Court, but creditors, or heirs of the estate, should nevertheless be satisfied that he had been faithless in the management of the estate and the discharge . of his trusts, and that they had sustained a loss in consequence thereof, would they be restricted in their remedy on the bond to the jurisdiction of the Probate Court in the first instance, where neither they, nor indeed the defendants could have the benefit of a jury trial upon so grave an inquiry ?

It seems to us that no just interpretation of the statute defining the powers and duties of our several courts, can lead to the conclusion that the litigation of their rights has been withdrawn from the general jurisdiction of the District Courts.

There were other grounds of demurrer assigned, not insisted upon however in this court, for the reason, perhaps, that they do not come within any of the causes enumerated in the Code of 1860, or the proper subjects of a demurrer.

The judgment below being reversed, tbe case is remanded.

Reversed.