Munroe v. the People

• Court: Supreme Court of Illinois
• Writing for the Court: DICKEY
• Citation: 1882 WL 10242,102 Ill. 406
• Parties: GEORGE MUNROEv.THE PEOPLE, for use of Young, Admr.
• Decision Date: 28 March 1882

102 Ill. 406
1882 WL 10242 (Ill.)

GEORGE MUNROE
v.
THE PEOPLE, for use of Young, Admr.

Supreme Court of Illinois.

Filed at Ottawa Mar. 28, 1882.

[102 Ill. 407]

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on appeal from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Messrs. GARNSEY & KNOX, for the plaintiff in error:

Mrs. Osgood never was removed from the office of administratrix. The attempted order of removal was void for want of jurisdiction. Before such removal, summons must be issued and served upon the administrator, requiring him to show cause to the contrary. Hurd's Stat. 1877, sec. 130, p. 105.

The citation issued against her was under section 115 of the act relating to the administration of estates, to compel the administratrix to show cause why she had not paid the creditor. The penalty for a failure to show cause is not a revocation of letters, but imprisonment, etc.

The rule that a judgment can not be attacked collaterally, does not apply where it is shown to be void for want of jurisdiction.

Mr. STEPHEN R. MOORE, and Mr. THOMAS HUTCHINS, for the defendants in error:

The county court has power to grant and revoke letters. The theory of the law is, that the court, through the agency of the administrator, is settling the estate, and any irregularity in the discharge of one agent, and the appointment of another, can not in anywise affect the acts of the de facto administrator. Wright v. Wallbaum et al. 39 Ill. 552; Diffin et al. v. Abbott et al. 48 Id. 19; Sheppard v. Rhodes et al. 60 Id. 301; Meek v. Allison et al. 67 Id. 46; 2 Kent's Com. 413; Herman on Estoppel, 139.

[102 Ill. 408]

The county court being one of general jurisdiction over a particular class of cases, when acting within that sphere has as general jurisdiction as the circuit court, and as liberal intendments will be made in favor of its orders and judgments. Probst v. Meadows, 13 Ill. 169; Reynolds v. People, 55 Id. 332; Housh v. People, 66 Id. 181; Marsh v. People, 15 Id. 286; Searle v. Galbraith, 73 Id. 264; Swearengen v. Gulick, 67 Id. 208; Beaubien v. Brinckerhoff, 2 Scam. 269; Kenney v. Greer, 13 Ill. 432.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

Young sues Mrs. Osgood as principal, and Munroe as surety, upon a bond given by defendants for the faithful administration of the estate of Uri Osgood, deceased. The plaintiff sues as administrator de bonis non of the same estate, as the successor of Mrs. Osgood, and for a failure on her part to pay over to him certain moneys of the estate said to be in her hands. Defendants pleaded, inter alia, that Young is not administrator. On this issue was produced in evidence a full transcript of the record of the county court, from which it appears that that court did make an order revoking the letters formerly issued to Mrs. Osgood, and afterwards did appoint Young administrator de bonis non.

The circuit court, with this transcript in evidence, instructed the jury, as a matter of law arising from this evidence, that “Mansfield Young is administrator de bonis non of the estate of Uri Osgood,” and that Mrs. Osgood was removed, and on these questions the law is for the plaintiff. This instruction was clearly wrong. The pleadings show that Mrs. Osgood was appointed, gave bond, and qualified as administratrix of the estate, in February, 1871, and acted as such for many years, and it follows that she still is such, unless the orders of the county court, already mentioned, terminated her administration. On inspection of the transcript of the proceedings of the county court, in which the

[102 Ill. 409]

supposed revocation of her...