Riggins v. O'Brien

Rombauer, P. J., delivered the opinion of the court. The record in this case recites as follows: “The parties by their attorneys appear, and all and singular matters and things herein are by agreement submitted to the court-for trial, and after hearing all the testimony offered, doth take time hereof to advise,” and again: [615] “The matters and things contained in this proceeding having been heretofore submitted on the records of the said probate court and evidence introduced, the court finds that the said surviving partner has in his hands, ready money sufficient to pay at least fifty cents on each and every dollar of all claims against said firm, and the court doth further find that the plaintiff did within the first year of the administration present three several notes made by the said James T. Blair and L. C. O’Brien to the said plaintiff, and that .the same had been properly allowed by the said^probate court in the aggregate on said notes, thirteen hundred and five dollars and sixty-five cents. It is therefore considered and adjudged by the court that the plaintiff have and recover from the assets in the hands of said surviving partner the sum of fifty cents on each and every dollar so allowed by said probate court against said assets, together with interest thereon and that the clerk of this court certify the judgment to the said probate court without delay.” This is the entire record. No part of the evidence is before us. There is no bill of exceptions in this case, nor does it appear that the plaintiff in error ever objected or excepted to the action of the trial court in any shape, form or manner. The only point made in this court by plaintiff in error is that neither the probate court nor the circuit court had jurisdiction to make the order complained of. In the absence of all evidence, and all objections and exceptions to the action of the trial court, we cannot see how the point arises upon the record at all. It is evident that, under section 65 of the Revised Statutes, as amended by the act of March 3, 1883, the jurisdiction of the probate court to make the above order depends on the existence of certain facts. As no part of the evidence is presented in the record; as it affirmatively appears that evidence was offered, and that the case was [616] by agreement submitted to the court for trial on such evidence, we must presume, in the absence of anything to the contrary in the record, that the necessary jurisdictional facts existed. Judgment affirmed. All concur.