Murphy v. Ames , 1 Mont. 276 ( 1871 )

Warren, C. J.

The only question presented in this record is, whether the probate court acquired jurisdiction in the cause by the service upon defendants of a summons issued under the hand of the judge of that court. This was before the passage of the act of the legislative assembly making provision for clerks of the probate courts.’ The civil practice act, however, then in force, prescribed the manner of commencing actions in the probate courts, and required the summons to be issued under the hand of the clerk, and the seal of the court. The fact that the statute had made no provision for either clerk or seal for such courts did not confer upon the judge the power to issue and attest a summons under his own hand. Voluntary appearance would be sufficient to confer jurisdiction, but the defendants in this case having confined their appearance to the sole purpose of moving for a dismissal, and not being properly in court, the proceedings and judgment were coram non judice and must be set aside.

The judgment is reversed and cause remanded.

Judgment reversed.