Roach v. Gunter

A. J. WALKER, C. J. On the 6th October, 1864, the probate court made an order reciting the filing of an application for the sale of land, and appointing the first Monday, (being the 7th day) of November, for the hearing of the application. On the latter day, at what is denominated in the entry on the record, a special term, the application was heard and the sale ordered. The order was not granted at a regular term, for the law designates the second Monday in the month as the time for holding regular terms, but the order was not therefore void. It was made at a special term, appointed for the purpose, and in our opinion there is no prohibition in the law to the hearing of the application and the granting of the order at a special term. The judges of probate are authorized to hold special or adjourned terms, “ for any special purpose.” We understand this “ special purpose” to be for the transaction of some particular or specified business as contradistinguished from the business of the court generally. Unquestionably the probate judge has the power in vacation to appoint special terms. There is in the law no restriction of his authority to the appointment of special terms to the time when he is holding a regular term. ,On the contrary, he is expressly authorized to make in vacation, “necessary orders, which are grantable as a matter of course.” The order for a special term may be appropriately classed as grantable as a matter of course. — Arrington v. Roach, decided at the present term ; Revised Code, § -795, (673.) We think the order of sale was not void, on the ground that it was granted at a special term, and we find no other ground upon which its validity can be impeached. We [242] deem it.unnecessary to consider the other arguments upon which the charge of the court below is assailed, but we do not mean to express a disapproval by our silence. Beversed and remanded.