Moffitt v. Moffitt

• Decision Date: 30 September 1873
• Citation: Moffitt v. Moffitt, 69 Ill. 641, 1873 WL 8531 (Ill. 1873)
• Parties: FRANKLIN MOFFITT et al.v.JOHN MOFFITT.
• Court: Illinois Supreme Court

69 Ill. 641

1873 WL 8531 (Ill.)

FRANKLIN MOFFITT et al.

v.JOHN MOFFITT.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

Messrs. WEAD & JACK, for the appellants.

Messrs. MCCULLOCH & STEVENS, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellants brought ejectment, to recover a tract of land. On the trial, the plaintiffs proved title by a deed of conveyance, with covenants of warranty, from defendant to Abner Moffitt, their ancestor, bearing date on the 11th of October, 1854, and proved that Abner Moffitt entered into possession, in his lifetime, under the deed from defendant, and was residing on it at the time of his death. Appellee then admitted that he was in possession of the premises when the suit was commenced.

The defense interposed was, the proceedings had in the county court of Peoria county for the sale of the land by the administratrix, for the payment of debts of the estate of Abner Moffitt, deceased. Defendant also introduced a deed of conveyance to him for the premises, from the administratrix, on a sale under these proceedings, dated the 22d day of June, 1860, and a decree confirming the report of the sale. These proceedings were read in evidence, against the objection of plaintiffs. The trial resulted in a judgment against plaintiffs, and they bring the record to this court, and ask a reversal.

It is urged that the county court had no jurisdiction to decree the sale; that, if it had jurisdiction, the decrees which it rendered were not complied with, as no such sale as they authorized was made; that the sale was void on its face, and was a nullity. The jurisdiction of the court over the persons of the defendants to that proceeding is not questioned, but it is denied that the petition filed by the administratrix contained allegations necessary to confer jurisdiction.

It has been repeatedly held that the county court, although of limited, is not, strictly speaking, of inferior jurisdiction; that it is a court of record, and has a jurisdiction of unlimited extent over a certain class of subjects, and, when acting within that sphere, its jurisdiction is as full as that of the circuit court. When, therefore, it is adjudicating upon the administration of estates, over which it has a general jurisdiction, as liberal intendments will be indulged in its favor as would be extended to the proceedings of a circuit court. Propst v. Meadows, 13 Ill. 157; Von Kettler v. Johnson, 57 ib. 109.

As the county court has concurrent and as large a jurisdiction over the sale of real estate for the payment of debts of deceased persons, as the circuit court, and being a court of record, as liberal intendments will be made, under these authorities, in favor of the jurisdiction, as had the proceeding been in the circuit court, and, in a collateral proceeding, the decree can only be attacked for want of jurisdiction. Mere error in the proceedings can only be urged on a direct proceeding for a reversal. It is insisted that the statute has made this a proceeding in chancery, and, if so, that the evidence read on the hearing in the county court, and upon which the decree was based, should, according to chancery practice, have been preserved in the record.

We are not inclined to the opinion that the legislature intended to make this a chancery proceeding, nor can we see that the statute will fairly bear such a construction; but even conceding that such was the design, still we fail to see how the mere preserving, or not preserving, the evidence in the record can in anywise affect the jurisdiction of the court. The jurisdiction of the defendant, as all know, is acquired by service or appearance; and the jurisdiction of the subject matter is acquired, in this class of cases, by the filing of a petition, by the executor or administrator, containing the necessary allegations, showing that the case requires the court, under the law, to proceed to hear and to adjudicate on the facts presented.

We then come to the consideration of whether the petition in this case contains the requisite allegations to call into action the judicial functions of the court. The first section of the act of 1857, page 138, provides that, where it can be ascertained that the personal estate of any testator or intestate is insufficient to pay the just claims against his or her estate, and there shall be any real estate to which such testator or intestate had claim or title, and the executor or administrator has made a just and true account of the personal estate and debts to the county court having jurisdiction thereof, such real estate, or such portion thereof as may be necessary to satisfy the indebtedness of such testator or intestate, and the expenses of administration, may be sold in the manner therein provided. The second section provides that the manner of proceeding shall be by filing a petition by the executor or administrator, in the county or circuit court of the county in which the letters were granted, and provides who shall be made parties. It is first objected that the administratrix does not state how she became such, or aver positively that she was appointed by any court having power. Whilst an accurate pleader would have made the averment, we by no means regard it as essential to the jurisdiction of the court. In this requirement of the statute, the act of 1857 does not differ materially from the 103d section of the Statute of Wills. The language of the two sections, as to who shall file the petition and where it shall be filed, is almost identical. In Stow v. Kimball, 28 Ill. 93, the petition was attacked as insufficient to confer jurisdiction; but, notwithstanding there was no allegation as to when, where or of whom the letters were obtained, nor was it stated when or where intestate died, still it was held that the court obtained jurisdiction to render the decree. That case is conclusive of this question.

It is objected that the allegation “that there are debts now standing against said estate, which have been allowed, to the amount of _____ dollars, and that there are no assets in petitioner's hands, the personal property being all exhausted, wherewith to pay said debts, without selling real estate,” was not sufficient to authorize the court to order the sale of real estate. On turning to the case of Stow v. Kimball, supra, it will be seen that this allegation is more full and formal than in that case. In that case, there was no allegation that the debts had...