Johnston v. Shofner

1. Claims Against Estates — Judgment—Decree.—The decision of a county court in summarily settling a claim under section 1134, Hill’s Code, is a judgment and not a decree. 2. Appeal prom County Court — Jury Trial — Transcript op Evidence — Code, § 1134.— On an appeal from a decision of a county court under section 1134, Ilill’s Code, the appellant is entitled to a jury trial in the circuit court. The transcript need not contain the evidence, since the case is at law and not in equity. Wilkes v. Cornelius, 21 Or. 345, approved and followed.

Multnomah County. Loyal B. Stearns, Judge. Defendant appeals. This was a proceeding originally commenced in the county court of Multnomah County to have a claim for money against the estate of Wesley Jackson allowed, which the defendant, as administrator of such estate, had disallowed and rejected. When the matter came on to be heard, the court, after hearing the evidence of the parties, found that the claim should be allowed, and ordered that the defendant, as such administrator, allow the claim, and that he pay it in due course of administration. From this order an appeal was taken to the circuit court for Multnomah County. The circuit court for that county is divided into department No. 1, in which civil jury cases are tried, and department No. 2, in which equity and criminal cases are tried and determined. Upon the transcript being filed in department No. 1, the plaintiff moved the court for an order affirming the order of the probate court, on the ground that the case was triable in equity and not at law. The court held that the cause should be heard on the appeal as an equity case, and transferred it to department No. 2. After the transfer, the plaintiff renewed. his motion for an order of affirmance upon the ground that no evidence taken on the trial in the probate court accompanied the transcript on appeal, and no bill of exceptions was in the record. The court sustained the motion on this ground, and ordered and decreed that the judgment order made by the probate court be affirmed. From this order and decree the appeal has been brought to this court. The record discloses that the cause was heard and determined in a summary manner by the county court under section 1134 of Hill’s Code, the testimony being taken orally and not reduced to writing. The appeal was taken to the circuit court, and the transcript filed in department No. 1, upon the theory that the cause of action was at law and triable by a jury. The transfer of the cause to department No. 2, and the affirmance of the order of the county court, was based on the ground that proceedings in probate on appeal were to be heard and determined as in suits in equity, and consequently, as there was no evidence accompanying the transcript on appeal, there was nothing for the circuit court to try. This question turns largely upon the construction which shall be given to the latter part of section 1134, Hill’s Code, providing that the court shall have power to hear and determine in a summary manner all demands against any estate agreeably to the provisions of this act, and which have been so rejected by the executor or administrator, and shall cause a concise entry of the order of allowance or rejection to be made on the record, which order shall have the force and effect of a judgment, from which an appeal may be taken as in ordinary cases. We took an appeal as in ordinary actions at law, and now claim the right to a jury trial. The judicial history of the state shows this to be a case wherein a jury trial would have been accorded us under the laws and practice at the time our constitution was adopted: Tt'ibou v. Strowbridge, 7 Or. 156; Adams v. Lewis, 5 Saw. 229. At common law we would have had a right to a jury trial: 1 Woerner Admn. 319. The appellant by his own neglect has lost his right to a hearing on the evidence in the circuit court, because (1) the probate proceeding of the county court is in the nature of a suit in equity as distinguished from an action at law; (2) there is no constitutional right to jury trial; (3) not having taken the evidence to the appellate court with the transcript, no error except such as was shown by the record could be examined in the circuit court. County courts, by article VII., section 12, of the constitution, are given “the jurisdiction pertaining to probate courts,” and by section 895 of the Code these courts have “exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is, * * * to direct and control the conduct and settle the accounts of executors, administrators, and guardians.” By section 1077, it is provided that in these courts no particular pleadings or forms thereof are required, and section 1078 is as follows: “The mode of proceeding is in the nature of that in a suit in equity as distinguished from an action at law. The proceedings are in writing, and are had upon the application of a party or the order of the court. ” By section 1079, the proceedings in probate matters shall be entered and recorded in books.. Orders or decrees may be enforced by execution or otherwise in the same way as orders or decrees for the payment of money in the circuit court: Code, § 1082. Courts of probate in America are generally believed to derive their powers, historically, from the ecclesiastical courts, and their modes of proceeding are said to be borrowed from these courts and from the courts of chancery: 1 Woerner Admn. 341. The allowing and ordering paid claims against estates has always been considered a part of the functions of courts of probate: 2 Woerner Admn. 815, § 392; 2 Kent Com. *409; Dayt. Surr. 4. Both by the written and unwritteu law, at the time of the adoption of the state constitution, there was no right to jury trial in such cases. The executor therefore cannot claim that he is denied any constitutional right in not being granted a trial by jury: Tribou v. Strowbridge, 7 Or. 156; 3 Am. & Eng. Enc. Law, 720; Schmidt v. Schmidt, 47 Minn. 451 (50 N. W. Rep. 598). The section of the Code (1134) under which this proceeding was instituted in the county court, directs the court to hear and determine in a summary manner, and to cause a concise entry of the order of allowance or rejection to be made on the record, “which order shall have the force and effect of a judgment from which an appeal may be taken as in ordinary cases.” Now, how are appeals taken in ordinary cases from orders in probate in the county court? The order is an order in probate, and has the effect of a decree by the express terms of the statute. (See section 902 of the Code.) By the amended section 541 of the Code (Laws 1889, 140), the testimony, depositions, and other papers containing the evidence heard or offered on trial in the court below must accompany the transcript. If the order of the county court was such “judgment” as is mentioned in the foregoing section, it must have been rendered in the exercise of the court’s ordinary jurisdiction to try actions at law where the matter in controversy does not exceed the value of five hundred dollars ; the pleadings should have been as prescribed for actions at law; summons should have been issued, and the parties should have had a jury trial; and, instead of directing the defendant to pay the claim in due course of administration, the order should have been in the form of a personal judgment for money. But an inspection will show that the proceeding was begun by petition and citation, and the procedure was in accordance with the usual practice in probate matters. It was not a “judgment,” therefore, in the sense in which the word is used in section 543, but a “decree”; for “the mode of proceeding is in the nature of a suit in equity as distinguished from an action at law.”