Sangamon County IL Archives Court.....Blankenship, John Williams V Eli C 1850 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 6:59 am Source: Reports Of Cases Written: 1850 John Williams et al., executors of George Trotter, deceased, plaintiffs in error, v. Eli C. Blankenship et al., administrators of Archibald Trailor, deceased, defendants in error. Error to Sangamon. A probate justice of the peace, when acting in that capacity, must affix the seal of that court to the process issued by him; when acting as an ordinary justice, he is governed by the rules applicable to proceedings before such officer.(a) Justices of the peace, in actions by or against executors or administrators, have only jurisdiction to the amount of twenty dollars. (b) Consent cannot confer jurisdiction. (c) The opinion of the court contains a statement of the case. The judgment appealed from was rendered by Davis, Judge, at the January term, 1850, of the Sangamon Circuit Court. Lincoln & Herndon, for plaintiffs in error: Justices of the peace have jurisdiction only where the statute gives it, and as against executors or administrators, where the claim falls below twenty dollars: R. S., p. 316, sec. 11; 1 Scam., 249; 3 Gilman, 286; 5 Pike, 385; R. L. of 1833, p 415. This judgment was for fifty dollars, therefore the court below had no jurisdiction, and the judgment is void: 1 Scam., 249; 3 Gilman, 286; 1 Scam., 237. S. T. Logan, for defendants in error. Treat, C. J. The administrators of Trailor brought a suit against the executors of Trotter. The process was in the prescribed form of a justice's summons, and was subscribed "Thomas Moffett, Pro. Justice Peace. L. S." After a hearing of the parties, he rendered a judgment in favor of the administrators for $43.18. He kept a separate docket for the entry of suits before him as a justice of the peace, in which the proceedings and judgment in this case were entered. He supposed that he had jurisdiction of the action as an ordinary justice of the peace, and considered himself as acting in that capacity. A citation subsequently issued out of the county court, requiring the executors to show cause why they should not pay the judgment. They appeared, and moved to dismiss the proceeding, because the justice had no authority to render the judgment. The county court refused the motion, and made an order directing the executors to pay the judgment. They appealed to the Circuit Court, and that court, on an agreed state of facts, as before set forth, affirmed the order of the County Court. The executors assign that decision for error. The only question in the case is, whether the officer rendering the judgment had jurisdiction of the action; and that depends altogether on the fact, in what capacity he was acting. If in the exercise of his functions as judge of the Probate Court, his right to hear the case and enter the judgment cannot be questioned; but if in the character of a justice of the peace, there was an excess of jurisdiction, and the judgment is a nullity. It was decided in the case of Dunlap v. Ennis, 3 Gilman, 286, that the powers of a probate justice are of a two-fold character: First, he is to perform the duties pertaining to the Probate Court, and when acting in that capacity, he must affix the seal of that court to the process issued by him, or his private seal, where no public seal has been provided; second, he is vested with the jurisdiction of justices of the peace in civil cases, and when exercising those powers, he is to be governed by the rules applicable to proceedings before such officers. Applying the principle of that decision to this case, it is manifest that the officer was not acting in the capacity of judge of the Probate Court, but was acting strictly in the character of a justice of the peace. The seal of the Probate Court was not attached to the process, and the proceedings were entered in the docket kept by him as a justice of the peace. Besides, he considered himself as engaged in the discharge of duties properly belonging to an ordinary justice. There is nothing in the case to indicate that he was exercising any authority vested in him as judge of the Probate Court. The only remaining inquiry is, had he jurisdiction of the case as a justice of the peace? The statute, after conferring jurisdiction in general terms on justices of the peace, in all actions for the recovery of debts and demands, in which the amount claimed does not exceed one hundred dollars, and for which debt or assumpsit will lie, declares that they shall also have jurisdiction "in all actions in which an executor or administrator is plaintiff, or for property purchased at an executor's or administrator's sale, where the amount claimed does not exceed one hundred dollars;" and "in all actions in which an executor or administrator is defendant, where the amount claimed does not exceed twenty dollars:" R. S., ch. 59, sec 17. If these two clauses had been left out of the statute, the preceding provisions might be construed as conferring jurisdiction on justices of the peace, in actions by or against executors or administrators, to the extent of one hundred dollars; but being introduced, they must be understood as qualifying and restraining the operation of the general provisions, to cases in which neither executors nor administrators are parties. As the law stood before the revision, justices of the peace had jurisdiction of actions against executors and administrators, to the amount of twenty dollars. From the manner in which previous laws were incorporated into the Revised Statutes, we are satisfied the legislature did not design to increase the jurisdiction of justices in this respect. The justice, therefore, exceeded his jurisdiction. The fact that the parties appeared before him and contested the merits of the case, can have no bearing on the proper decision of this question. It is a familiar doctrine that consent cannot confer jurisdiction. The judgment of the Circuit Court is reversed, with costs against the administrators, to be paid in due course of administration. Judgment reversed. -------------------- (a) See Gibbons v. Kimball, 3 Scam., 61 (annotated edition), and note (a). (b) See Miller v. McCray, 37 Ill., 429; Leigh v Mason, 1 Scam., 249. (c) If a court has no jurisdiction of the subject matter of a suit, consent of parties can never give it: Leigh v. Mason, 1 Scam., 249; The People v. Scates, 3 Scam., 351; Beesman v. City of Peoria, 16 Ill., 488; Peak v. The People, 71 Ill., 278; Ginn v. Rogers, 4 Gil., 131; Fleischman v. Walker, 91 Ill., 318. But when the court has jurisdiction of the subject matter, consent, or appearance without objection gives jurisdiction of the person: Randolph County v. Ralls, 18 Ill., 29. See Allen v. Belcher, 3 Gil., 594. To the point that appearance cures defects in a writ and its service, see Miles v. Goodwin, 35 Ill., 53 (annotated edition), and note. Additional Comments: Reports of Cases Determined in the Supreme Court of the State of Illinois from November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor at Law. Volume XII. Reprinted from the Original Edition, with Annotations by William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 1881. File at: http://files.usgwarchives.net/il/sangamon/court/blankens33gwl.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 7.8 Kb