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6 Cal. 652

Smith v. Andrews

California Supreme Court

Decided July 1, 1856

California Supreme Court · decided 1856-07-01

<p>Appeal from the Superior Court of the City of San Francisco.</p> <p>This was an action against A. T. McClure, Smyth Clark and William Andrews, on the official bond of McClure, as administrator of the estate of Henry C. G-illis.</p> <p>The complaint alleges that the plaintiff had a claim for 1831 against the estate of G-illis; that he presented his claim, and the same was allowed by the administrator and the Probate Judge; that subsequently “ the said A. T. McClure filed a petition in the said Probate Court, praying that the said Court would authorize him to pay the claims duly presented against said estate; that said Court, on the 4th December, 1854, made an order or decree whereby said administrator was authorized to pay all the claims duly presented and approved, and amongst the said claim of the plaintiff hereinthat the plaintiff had demanded the payment thereof from said administrator, which had been by him refused; that said administrator had in his hands sufficient money to pay all the claims presented and allowed against said estate, and that the time for presenting claims against the estate had expired.</p> <p>The defendant, Andrews, demurred to the complaint, as not stating facts sufficient to constitute a cause of action, specifying, among other grounds of demurrer, that the judgment of the Probate Court was not set forth in the complaint, nor the facts stated which are necessary to give that Court jurisdiction. The Court below overruled the demurrer. The defendants answered, and the cause being tried by the Court, a j udgment was- entered for plaintiff. Defendants appealed.</p>

Relies on Warner v. Wilson

Good law ✅— No negative treatment on recordhow we know

Decided 1856-07-01

How this case has been cited

Cited by 3 later decisions — most recently January 1890

3 state decisions

1018561860187018801890decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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The opinion of the Court was delivered by Mr. Chief Justice Murray.

¶1Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

¶2The demurrer to the plaintiff's declaration was well taken. Probate Courts are of inferior and limited jurisdiction, and in pleading their judgments, it is necessary to set out the facts which give jurisdiction.

¶3In England, Courts are divided into such as are of record, and those that are not. Courts of record are supreme, superior or inferior. Inferior Courts may be defined to be those whose jurisdiction is limited and special, and whose proceedings are not according to the course of the common law. Inferior Courts axe bound, in their original creation, to causes arising within such limited jurisdiction; hence it is necessary for them to set forth their authority, for nothing shall be intended within the jurisdiction but what is expressly alleged to be so.'' Bac. Abridgment, title Courts, p. 630.

¶4In the case of Wilson v. Dunbar, 4 Cal. 313, so much of the opinion as related to the introduction of the record of the Probate Court was obiter, as the acts of Edward E. Dunbar were afterwards ratified by Frederick Dunbar. The mistake probably arose from the fact, that the respondents did not resist the reversal, and the Court was thus led into a hasty and erroneous expression of opinion. We, however, avail ourselves of this early opportunity to correct the error.

¶5Judgment reversed, and cause remanded.

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