North Missouri Railroad v. Parks , 34 Mo. 159 ( 1863 )

Bay, Judge,

delivered the opinion of the court.

The only question of importance presented by the record in the case, is, whether a writ of error lies from the Circuit Court to the County or Probate Court, with respect to matters exclusively of a probate character.

Tidd, in his work on Practice, defines a writ of error to be an original writ issuing out of Chancery, and which lies where a party is aggrieved by any error in the foundation preceding judgment, or execution of a suit in a court of record, and is in the nature of a commission to the judges of the same, or a superior court, by which they are authorized to examine the record upon which judgment was given, and on such examination to affirm or reverse the same, according to law. In England it was extensively employed, and issued as a matter of right from a superior to an inferior tribunal, provided such inferior tribunal was a court of record exercising common law jurisdiction. In this country its use has been more limited, from the fact that a party, aggrieved by the judgment or decision of an inferior court, has, in most cases, a statutory remedy, in the nature of an appeal.

It is also well settled by authority, in this country, that in the absence of any statutory permission, the writ will not lie to a court vested with special jurisdiction, and which does not proceed according to the forms of the common law. (3 Gill. 497; 4 Mass. 171; 11 Mass. 507.)

Neither the County or Probate Courts of this State possess common law jurisdiction, though declared by statute to be courts of record. They are courts of special jurisdiction, with powers defined and limited by statute. It is clear, then, that a writ of error does not lie to them, unless authorized by statute.

It is insisted by the defendant in error that the power to issue the writ is given by the second section of the fourteenth article of the “ Act regulating practice and proceedings in civil cases.” (R. C. 1855, p, 1295.) The section reads as follows : “ Writs of error shall issue on demand, as a matter of right, on the final decision or judgment of the County Court from the Circuit Court, in term time or vacation, except in relation to probate matters, within ninety days from such judgment or decision.”

It is contended by counsel that the exception found in the statute was designed to qualify the issuing of the writ only as to the time limited, and not as to the general authority to issue it; and that, therefore, in probate matters, he is entitled to the writ at any time within three years from the rendition of the judgment, as provided by the succeeding section. We are free to admit that the section is ambiguous, and may possibly admit of either construction; but we are clearly of the opinion that the Legislature intended that the exception should apply to the writ itself, for the whole policy of our law regulating the administration of estates, is, to wind up estates at the earliest practicable period; hence, it is provided, (with a saving clause as to infants, persons of unsound mind, &c.,) that all demands against an estate not exhibited for allowance within three years after the granting of letters, shall be forever barred. It is further provided, that no executor or administrator shall be compelled to pay legacies, or make distribution, within three years after the date of his letters, unless ordered to do so by the court, until bond and secui’ity be given by the legatee or distributee to refund his due proportion of any debt, which may afterwards be established against the estate, and the costs attending the recovery thereof.

No provision can be found which authorizes or requires the taking of such refunding bonds after the expiration of the three years. While it is true that the Legislature have made no limit as to the time within which an estate shall be settled, it is manifest that they deemed the three years a sufficient time in ordinary cases. But if a claimant is entitled to a writ of error at any time within three years after the rejection of his claim, he may keep the estate open and unsettled for that period of time, for he may delay exhibiting his claim until just before the expiration of the time within which he is required to exhibit it, thus depriving heirs of any benefit of the estate for a protracted period.

Another reason which can be forcibly urged in behalf of the view we have here taken, is, that the law makes ample provision for the correction of any error that the Probate Court may commit. The party aggrieved is entitled to an appeal, if taken during the term at which the decision complained of is made. Upon the granting of an appeal, and filing the transcript in the office of the clerk of the Circuit Court, such court becomes possessed of the cause, and is required to hear, try and determine the same anew, without regarding any error, defect, or other imperfection in the proceedings of the inferior court. The Circuit Court is not regarded as a revisory court, but tries the cause as though it originated in the Circuit Court. But if a party is entitled to bring his case up by writ of error, and does so, then there can be no trial de novo, for the writ goes to the record, and the Circuit Court is precluded from going outside of the record to find error.

But if the respondent is correct in the supposition that he was entitled to his writ of error, we do not see how it could avail him in the case at bar, for the evidence given in the Probate Court is not preserved by bill of exceptions. The motion filed in the Circuit Court to dismiss the writ should have been sustained.

Judgment reversed and cause remanded, with instructions to the court below to dismiss the writ of error;

Judge Bates and Judge Dryden concurring.