Loveland v. Sears

Hallett, C. J. After judgment in the probate court, the cause was removed to the district court by certiorari, and the latter court quashed the writ upon appellee’s motion. In his petition to the district court, the appellant prayed that the writ might be issued in pursuance of the statute, but it is not possible to ground this proceeding upon that act. The act refers to proceedings before justices of the peace, and it is impossible to extend it to probate courts. If, in this instance, the probate judge had been acting as a justice of the peace, there would be some ground for saying that the proceedings were subject to removal according to the statute, but such was not the fact. The cause originated in the probate court, and was not within the jurisdiction of a justice of the peace. Therefore this writ cannot stand upon the statute, and we will now inquire whether it may stand upon the common law. By the common law the writ of certiorari lies for the removal of causes from an inferior to a superior tribunal. 1 Tidd’s Prac. 398. Hence the first question arising in every case is as to the jurisdiction of the court from which the writ is issued; for if the court to which the cause is taken is not superior to that from which it is removed, of course the writ is nugatory. In Davis v. Cass, ante, 43, this court held that the district and probate courts, within the time prescribed to the latter, were of concurrent jurisdiction, the supreme court being invested with authority to revise the proceedings of either. It is true that in that case the subject of appeals only is discussed, and nothing is said of the proceeding by certiorari. Nevertheless, the power to review the decisions of probate courts was found to be in the supreme court and not in the district court, and this is decisive of this question. It would be strange indeed if district courts could review [196] proceedings of probate courts upon certiorari when they are unable to proceed to the same result upon appeal or writ of error. The judgment of the district court is affirmed, with costs. Affirmed.