Shaw v. Groomer

Wagner, Judge, delivered the opinion of the court. . It appears from the record that one Burton made an affidavit stating that he had good reason to believe, and did believe, that the defendant had concealed in her possession and under her control, certain money belonging to the estate of Groomer, deceased, and that she refused to turn the same over to the administrator. It is nowhere shown that Burton had any interest in the estate, or that he was authorized to make the affidavit according to the provisions of the statute. (Wagn. Stat., 85, § 7.) The affidavit was. defective in other matters, but a citation was issued and such proceedings were had in the Probate Court, that a judgment resulted in favor of the estate and against .the defendant. The defendant appealed to the Circuit Court, and in that court the administrator appeared, for the first time, and on his own motion filed a new affidavit, to which-defendant objected and excepted. Objections were then made to the introduction of any evidence in the cause; one of the principal reasons assigned therefor, being, that the filing of the affidavit by the administrator in the Circuit Court, was an abandonment of the said proceeding as originally instituted, and that the court had no authority or jurisdiction to hear and determine the cause on the second affidavit. The objection was sustained and the suit dismissed. The only question presented for determination by the record is, whether the administrator could come into the Circuit Court, for the first time, and file an entirely new affidavit and compel the defendant to proceed to trial thereon. This ques [497] tion must be answered by a construction of the statute(in reference to appeals in administration cases from the Probate or County Courts. The statute provides that “'upon the filing of such transcript and papers, in the office of the clerk of the Circuit Courts, the court shall be possessed of the cause, arid shall proceed to hear, try and determine the same anew, without regarding any error, defeet or other imperfection in the proceedings in the court having probate jurisdiction.” (Wagn. Stat., 120, § 8.) New errors, defects or other imperfections in the, Probate Court, are to be disregarded, but the same cause is tobe tried anew in the appellate court, that was tried in the court of original jurisdiction. In one sense, so far as the subject matter was concerned, i. e. the money, the cause was the same. Except in cases in rem, however, subject matter alone does not confer-jurisdiction. In personal actions, jurisdiction over the parties is indispensably necessary. The administrator was not a party to the original proceeding and had no agency in instituting the same. When he appeared and filed his affidavit, it was the introduction of a new party, and changed the character of the'action. He could not connect it with the defective affidavit made previously in the court below, which seems to be conceded, was unauthorized. His affidavit, then, was the same as if it had been originally filed as the institution of a new proceeding, and it could- not be made in an appellate court. We do not deny the proposition that affidavits are amendable, where they are not absolutely void ; but this case has for its foundation a different basis. The appeal is only allowed by the statute, and the trial and proceedings must be had in conformity with its provisions. A fair and just interpretation of the section permitting appeals, will not sanction the course of-the plaintiff in this case. Judgment affirmed; the other judges concur.