Overbeck v. Cornwell

Beeves, J.

The question to be determined in this case, is, has the County Court, at a probate term, jurisdiction of an action of assumpsit, brought by an administrator to collect a debt due the intestate in his lifetime? It would seem that this question must be determined by the statute. That the County Court has such jurisdiction is not questioned, but is the jurisdiction confined to the law terms of the County Court, or may such a suit be brought to a probate term ? Sec. 5 of the act of 1874 relating to county courts provides: “County courts shall have jurisdiction in all matters of probate, settlement of estates of deceased persons, appointment of guardians and conservators and settlement of their accounts, all matters relating to apprentices, proceedings for the collection of taxes and assessments, and in proceedings by executors, administrators, guardians and conservators for the sale of real estate forth e purpose authorized by law; all of which, except as hereinafter provided, shall be considered as probate matters, and be cognizable at the probate term hereinafter mentioned.” Sec. 6 relates to the time of the holding of probate terms, etc.

Section 7: “ The county courts shall have concurrent jurisdiction with the circuit courts in all that class of cases wherein justices of the peace now have or may hereafter have jurisdiction, where the amount claimed, or the value of the property in controversy shall not exceed one thousand dollars (§1,000), concurrent jurisdiction in all cases of appeals from justices of the peace and police magistrates, provided, appeals from the county judge, when sitting as a justice of the peace, shall be .taken to the Circuit Court as now, and in all criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary or death; all of which shall be cognizable at the law terms hereinafter mentioned.”

It will be observed that the matters embraced in Sec. 5 are cognizable at the probate terms, “ except as hereinafter provided.”

Section 7 enumerates, among others, just such a case as the one involved in this suit, and says it shall be cognizable at the law terms of the County Court. We do not see how the Legis^ture could well have used language that would more plainly fix the jurisdiction of the County Court, at its law term, of such cases as the one here considered.

Even conceding that this case might be included under the phrase, “settlement of estates of deceased persons,” found in Sec. 5, still it must be remembered that Sec. 5, in giving jurisdiction at the probate terms of the County Court in the matter of the settlement of the estate of deceased persons, and other matters, excepts what is in the same act thereinafter otherwise provided, and Sec. 7 specifically gives the County Court jurisdiction of the whole class of cases to which the one in controversy in this suit belongs, and declares that this jurisdiction shall be exercised by the County Court at its law terms. We think the Circuit Court held correctly that the County Court, at a probate term, had not jurisdiction of the subject-matter of the suit of Arminda J. Broom, administratrix of the estate of John Broom, deceased, versus George W. Corn-well; jurisdiction of the subject-matter is just as nenessarv as jurisdiction of the person of the defendant in order to a valid judgment. Where there is an absence of jurisdiction of the subject-matter, the judgment is void and may be attacked collaterally.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.