Mr. Justice Eakin
delivered the opinion of the court-
1. Defendant first questions the authority of the-Circuit Court to -try the claim of Branch against the-[611]*611McCormick estate; also the validity of the act of the legislature which attempts to transfer all probate business and jurisdiction of the County Court in Multnomah County to the Circuit Court. This is in violation of Article IV, Section 23, subdivision 3, of the Constitution, in that it is local and special in attempting to regulate the practice pf -the courts of justice in Multnomah County, without any change in the practice in the County Court as it relates to probate work, leaving Section 1241, L. O. L., to control in the trial of claims against the estate disallowed by the administrator. Said section was attempted to be followed in this proceeding in the Circuit Court. The Circuit Court cannot try a case summarily. The effect of the act is to attempt to transfer the practice in the County Court in Multnomah County to the Circuit Court without any attempt to change or modify the procedure in regard to probate matters to fit the Circuit Court practice, without which the former has to be followed in probate matters which we see cannot be done.
2, 3. Furthermore, the plaintiff has a right to trial by jury, which he did not waive by remaining silent. He could waive it only in the manner provided by the Code. The term “summary proceeding,” as used in Section 1241, L. O. L., means without special formality or without a formal pleading, and does not necessarily mean a trial without a jury. In Wilkes v. Cornelius, 21 Or. 341, 348 (23 Pac. 473, 28 Pac. 135), as in Pruitt v. Muldrick, 39 Or. 353 (65 Pac. 20), the case is in the nature of an action at law, and must be tried anew when taken before the county judge. The legislature did not intend by Section 1241 to preclude a jury trial. This is also followed in Johnston v. Shofner, 23 Or. 111 (31 Pac. 254).
[612]*6124. However, the method of trial provided in Section 1241 is not exclusive, but, under Section 386, L. O. L., by a statement of the proper facts, the matter may be sued in the Circuit Court directly: See Pruitt v. Muldrick, 39 Or. 356 (65 Pac. 20). This case was not commenced in the Circuit Court under Section 386, but was brought before the. Circuit Court under Section 1241. It was not in the power of the legislature to transfer the practice in Multnomah County in probate matters to the Circuit Court and make that the practice of the Circuit Court, which was the intended effect of the act. Although this court has held that the probate practice is in the nature of an equity proceeding, yet the trial of a claim against an administrator is a trial at law, and the parties have a right to a jury trial: See In re Chambers’ Estate, 38 Or. 131 (62 Pac. 1013), in which Judge Wolverton says that the claim may be contested in the County Court before a jury if desired.
The decree is reversed and the cause remanded for further proceedings.
Reversed.
Mr. Justice Bean and Mr. Justice McNart concur.
Decided October 20, 1914.
Free access — add to your briefcase to read the full text and ask questions with AI