Johnston v. Shofner

Lord, C. J. The question of practice involved in this controversy has been directly presented and decided by this court in Wilkes v. Cornelius, 21 Or. 345 (23 Pac. Rep. 473). It arose upon a claim for money for services rendered, which the executor disallowed, when the claimant ant presented it to the county court for allowance under section 1134, Hill’s Code, providing for the adjudication of claims against the estate of a deceased person in a summary manner. The county court disallowed the claim, and an appeal was taken to the circuit court, the transcript containing all the evidence received by the county court. From this it will be observed that the proceeding was prosecuted in the nature of a suit in equity as distinguished from an action at law, as prescribed by s'ection 1077. Referring to the mode of procedure, and the judgment obtained under section 1134, Thayer, C. J., said, at the top of page 345: “It declares that the order of allowance or rejection of the claim shall have the force and effect of a judgment, from which an appeal may be taken as in ordinary cases. Such a judg [116] ment must obviously be regarded in the same light as a judgment for the recovery of money in an action; and if an appeal be taken therefrom to the circuit court, it will involve the trial anew of the matter in issue between the parties, which should be conducted in the same manner that trials at law for the recovery of money are conducted in circuit courts. The parties are entitled to have a jury trial, which can only be waived as provided by Hill’s Code, § 218, and to have the judgment given therein reviewed in this court in the same way as judgments in actions at law are reviewed, and not otherwise. We have no authority to consider the evidence annexed to the transcript in this case for the purpose of ascertaining whether or not the appellant’s claim against the estate should have been allowed, etc. * * * Nor had the circuit court any jurisdiction to retry the matters adjudicated upon in the county court, unless an appeal from such adjudication to the circuit court was regularly perfected as in cases of appeal from judgments of county courts rendered in civil actions. ” Again, in referring to the constitutionality of section 1134, he says that “its constitutionality would be questionable if it were to receive the construction which counsel for both parties seem to have given it, as it would, under their view, deprive parties of the right of trial by jury in the enforcement of a legal obligation to pay money; but the legislature evidently did not intend that it should receive that construction. Giving to the adjudication of a claim against an estate the force of a judgment, as provided in said section, does not impair the right of a party against whom it is made to a jury trial within the meaning of the constitution, if he can secure it by appeal from such adjudication to the circuit court, which, in my opinion, he is clearly entitled to under the provisions of the section. ” The case was sent back, and after a trial before a jury in the circuit court, resulting in a verdict and judgment in favor of the claimant, it was again brought to this court on appeal: 21 Or. 348. In delivering the opinion [117] of the court, Bean, J., said, at p. 351: “The law providing for the adjudication of claims by the county court vests in that court power to hear and determine all claims against the estate of a deceased person in a summary manner, without the formality of technical pleadings, yet preserving all the rights of the parties by providing for appeals to the circuit court and to be there tried de novo.” And again, that the proceeding under section 1134 was “in effect a suit or action against the executor or administrator without the formality of technical pleadings. ” In the consideration of that case, there was the suggestion that to give section 1134 a construction which should make the proceeding in the nature of a suit in equity conformable to section 1078, would not operate to deprive the claimant of a trial by jury, as he could begin an action at law after this claim was disallowed by the administrator and try his case before a jury; that the section was only designed to afford a summary mode of proceeding for the convenience of the people, and the claimant had his choice of remedies, and as one of these preserved to him a right of trial before a jury, the section did not operate to deprive him of a trial by jury. This observation is made in view of some language used by Thayer, C. J., as expressiDg his own opinion in answer to the query as to its constitutionality. His view was based on the assumption that the remedy provided by the section was exclusive, and consequently operated to deprive the party of a trial by jury. But the controlling considerations which influenced the judgment of the court were the language of the section which gave to the order “the force and effect of a judgment from which an appeal may be taken as in ordinary cases, ” that is, as ordinary cases of appeals from judgments of the county court upon legal demands or claims, and the manifest purpose of the section to provide a cheap, speedy, and convenient method of procedure, without regard to technical precision, and at the same time preserve the rights of tiie parties by providing for appeals to the [118] circuit court, where the cause would be tried anew without the burden and expense of reducing the evidence to writing, as is done in equity suits. From the nature of the case, the mode of procedure usually prescribed for probate courts is more nearly conformable to proceeding in equity than law. While it is true that such courts have no original equity jurisdiction, yet in the conduct and disposition of business before them, they observe and apply legal or equitable rules, as the case may be. The nature and extent of their jurisdiction depend upon the statute, and they possess no other or greater powers than so conferred. It is upon the refusal of the executor or administrator to allow the claim or demand that the statute (section 1134) provides that the county court, after notice has been given, may proceed to hear and determine in a summary manner such claim or demand against the estate. When this is done, and a party is dissatisfied with the judgment order allowing or rejecting such claim, and has appealed from it, what possible objection can there be to the circuit court trying the issues according to legal principles as is dpne in like cases? Why subject the party when the obligation is legal, and the court presided over by a trained lawyer capable of instructing the jury upon the law in the premises, to the slow and tedious, expensive and cumbrous, method of taking depositions or reducing the evidence to writing? We see no reason for it, and think the case is controlled by Wilkes v. Cornelius, supra. It results that the judgment must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.