Comer v. Ross

Lumpkin, Presiding Justice. The ordinary, under our laws, is an official charged with the performance of duties judicial, ministerial and clerical. Rot by Ms title, but only by Ms acts, can the exact capacity in which he appears ever be known upon any special occasion. In admitting a will to probate, he acts as a judicial officer, the subject-matter being one over which the court •of ordinary has jurisdiction, and he being by law its presiding judge. Civil Code, §§4232, 4218. In issuing a marriage license, he for the moment becomes a'ministerial -officer. §4250, par. 3. He is also ex officio Ms own clerk, and labors under a weight of clerical duties almost too numerous to mention. §§4247, 4248. There are instances in the Civil Code, almost without number, where it is declared that jurisdiction undoubtedly appertaining to the “court of ordinary” shall be exercised by the “ordinary.” The constitution expressly says that the powers of a court of ordinary and of probate shall be vested in an ordinary, from whose decision there may be an appeal to the superior court. §5852. Section 4251 provides that the several courts of ordinary shall be held in each -county by the ordinary thereof; and section 4262 speaks of 'that court as “his court.” [653] The matters passed upon, by tbe ordinary in the present case were surely such as fall within the jurisdiction of the court of ordinary; and therefore we must conclude that he was acting in a judicial capacity, and that his decision was properly the subject-matter of an appeal to the superior' court. Certainly, fixing the amount of extra compensation to be allowed a temporary administrator, granting an order for same, and discharging him from the trust, were in no-sense executive, ministerial or clerical functions. Accordingly, it was the right of the parties at interest who were* dissatisfied with the action of the ordinary in these matters-to have the same reviewed by appeal; this, and not certiorari, being the remedy distinctly provided by law for correcting errors committed by the court of ordinary. Civil Code, §§4454, 4466; and 5852 supra. Judgmmt reversed. All the Justices concmrmg.