Cones v. Ward

Buss, Judge, delivered the opinion of the court. This suit was instituted in the Barton County Circuit Court, and defendant demurred for want of jurisdiction. The demurrer was sustained, and judgment was rendered for defendant, which was affirmed in the District Court. Barton is among the counties enumerated in the act of March 19, 1866 (Sess. Acts 1865-6, pp. 83-8), in which Probate Courts were created to which, by section 6, “ exclusive jurisdiction” was given “to hear and determine all suits and other proceedings instituted against executors and administrators, upon any demand against the estate of their testator or intestate.” No language' can be plainer than that of the statute, and it does not admit of construction. In Gray’s Adm’r v. Adm’rs of Scott and Rector, ante, p. 285, it was held, under a similar statute, that parties could not by consent confer jurisdiction upon [291] the Circuit Court, but that cases like the present must, in the first instance, be determined in the Probate Court. But plaintiff contends that, because of section 23 of the act, which provides that “ all laws in relation to wills, the administration of estates, guardianship, and curatorsliip, shall be applicable and in force in the Probate Court hereby established,” therefore the provisions of the general law, authorizing suits against estates in the Circuit Court, are preserved. This section will bear no such construction. It is not inconsistent with, nor can it be held to repeal, the sixth section of the same act, but simply does what it purports to do — applies the provisions of existing laws to the new court. The other judges concurring, the judgment will be affirmed.