Rogers v. Stevens

Perkins, J. Suit for the recovery of possession of real estate. At the October term, 1353, of the Decatur Circuit Court, a motion, made by the defendant in the cause for a change of venue, was sustained, the Court ordering that the papers be transmitted to the Rush Circuit Court, to which the change had been granted, on payment of costs, without limit as to time within which the payment should be made. On the 27th day of March, 1854, the first day of the spring term of the Rush Circuit Court, to which the venue had been changed, the defendant paid the costs, and the papers in the cause were .transmitted to said Court. At the April term following, of the Decatur Circuit Court, that Court ordered the clerk of the Rush Circuit Court to return the papers, and upon that being done, proceeded and tried the cause in the Decatur Circuit Court, the defendant excepting to each of the orders and proceedings of said Decatur Circuit Court, at said April term. -"We think the Court did not err in ordering the Rush county clerk to return the papers, and in trying the cause. The statute regulating changes of venue, provides that, upon the change being directed,'the papers shall be transmitted forthwith, &c., which means, as soon as it reasonably can be done. But the costs must be paid by the party applying for the change before the papers are sent. If, therefore, the party obtaining the order for a change, fails to pay the costs within a reasonable time, he loses the benefit of the order; it-ceases to operate after the expiration of such time; and the cause remains pending as if no order of change had been made. This rule is necessary to prevent frauds. On the trial of the issues made in the cause, the Court permitted the last will and testament of one Robert [466] Rogers to be proved and readmi' evidence, though, it had never been admitted to probate, in the proper court. Exception was taken. In England, a will disposing of personal property had to be proved in the Ecclesiastical Court, which had exclusive jurisdiction of the,probate of such wills. It was otherwise with wills disposing of real estate. They were proved as other instruments of writing and deeds were, in any court of law in which a question upon them arose. Will, on Pers. Prop, side p. 258. Ur. Paley, in his Moral and Political Philosophy, says: “Anciently, when any one died without a will, a bishop of the diocese took possession of his personal fox-tune, in order to dispose of it for the bexxeiit of his soul, that is, to pious or charitable uses. It becaxne necessax-y, therefox-e, that the bishop should be satisfied of the axxthenticity of the will,, when there was any, before he resigned the right which he had to take possession of the dead man’s fox-tune ixx case of ixxtestaey. In this way wills, and controversies relating to wills, came within the cognizance of ecclesiastical courts; uxxder the jux-isdictioix of which, wills of persoxxals (the oxxly wills which were made formexj^) still continue, thoxxglx in truth, no.more now-xpdays connected with religion thaix any-other instx’umeiits of conveyance. This is a peculiarity ixx the English laws.” In this State, exclusive jxxrisdietioix of the probate of wills disposing of either real or pex-sonal px-opex-ty, was formerly vested ixx the Probate, and is now vested in the Common Pleas Court. See the statutes.- Axxd section 82, p. 316, 2 R. S. enacts that every will, after having been admitted to px-obate, &c., “ rpay be read in evidence without further proof.” ** Now, as ixx England, a'will, a$':to personalty, had to be admitted to probate ixx the Ecclesiastical Court, because that Court had exclusive j-uxisdictioxx of the probate; so, it would seem to follow that, ixx this State, a will as to either x-eal or personal property should- be admitted to* probate in the court having exclusive jurisdic [467] tion of such probate, before it 'could be read in evidence in other courts; and we so decide upon the cases of Tompkins v. Tompkins, 1 Story’s P. 547. — Shumway v. Holbrook, 1 Pick. 114. — Laughton v. Atkins, 1 Pick. 535.— Kerr v. Moon, 9 Wheat. 566. — 5 Cond. R. 681. J. Gavin and J. B. Coverdill, for the appellant. J. S. Scobey and W. Cumback, for the appellees. Per Curiam. The judgment is 'reversed with costs. Cause remanded, &c.