Cones v. Ward

1. Administration — Barton County Probate Court — Suit against administrators must be first brought in the Probate Court.— Suit brought against an administrator in Barton county must, under the statute of March 19, 1866 (Sess. Acts 1866, p. 85, $ 6), concerning Brobate Courts, in the first instance be determined in the Probate Court. And parties can not by consent confer jurisdiction on the Circuit Court. Section 23 of said act was not intended to preserve the provisions of the general law authorizing suits against estates in the Circuit Court. It is not inconsistent with, nor can it be held to repeal, section 26, but simply applies the provisions of existing laws to the new court.

Appeal from Third District Court. Samuel Cones brought suit in the Circuit Court of Barton county against the administrator of the estate of George E. Ward, deceased, the predecessor of the present administrator, for work and labor done and materials furnished to decedent in his lifetime. The petition is in the usual form. Service was had upon the administratrix, and she appeared and demurred to the petition,' assigning as ground that the court had no jurisdiction. The court held that it had no'jurisdiction, and entered judgment on the demurrer in favor of the defendant, and dismissed the suit. Cones then sued out a writ of error from the Third District Court, where the judgment of the Circuit Court being affirmed, he brings the case here by appeal. Section 23 of the act of March 19, 1866, declares that “all laws in relation to wills, the administration of estates, guardianship, and curatorship, shall be applicable and in force in the Probate Court hereby established.” By the laws then in force relating to the administration of estates (R. C. 1855, p. 153, § 8 ; id. 157, § 30), to which express reference is thus made, a claimant was permitted to establish his demand “by the judgment or decree of some court of record in the ordinary cours > of proceeding.” ' Arid without resorting to the general law respecting the administration of estates, there were no means provided for the allowance of a demand in the Probate Court of Barton county. (Cooley on Const. Lim. 186.) But aside from the declaration in the twenty-third section, the well-settled rule of construction requires that in construing the meaning of an act all statutes in pari materia should be considered in connection with the act in question. (Hayes v. Hansom, 18 N. H. 384; Wakefield v. Phelps, 37 N. H. 295, and cases cited; Board o£ Commissioners v. Cutler, 6 Iowa, 354; Turner v. Wilton, 36 111. 385; Burr v. Dana, 22 Cal. 11; Manuel v. Manuel, 13 Ohio, 458 ; Desban v. Pickett, 16 La. Ann. 350 ; Mitchell v. Duncan, 7 Fla. 13; Merrill v. Gorham, 6 Cal. 41; United States v. Collier, 3 Blatchf. C. C. 325; United States v. Fisher, 2 Cranch, 358; 9 Bac. Abr.. 243 i, and cases cited; Sm. Com. 622, § 470.) •