Mr. Justice Westcott
delivered the opinion of the court.
This is an appeal by the administrator from a judgment of the Circuit Court upon certiorari, whereby proceedings in the County Court for the sale of real estate to pay debts were annulled and vacated. We do not propose to consider the errors as assigned in the order of their assignment.
We have had occasion at this term, in the cases of Basnet vs. The City of Jacksonville and Edgerton vs. The [545]*545Town of Green Cove Springs, to announce our views upon the general subject of proceedings upon a common law writ of certiorari, and, as in this case, the question, is involved, we deem it proper to state that we have no doubt of our jurisdiction upon appeal to review the proceedings of the Circuit Court here; such is the practice in the courts of every State where a like jurisdiction to that of this court exists.
Relieving that there is no doubt of our jurisdiction to review this judgment of the Circuit Court upon appeal, the first question which meets us upon opening its record is whether it has jurisdiction of a certiorari to the County Court to bring up the transcript of the record of its judgment in the matter of a sale of land to pay debts of a decedent upon the petition of the administrator.
In the State of Massachusetts, where there was a statute somewhat similar to that of this State, (Chap. 1627, Laws,) which gave an appeal to the Supreme Court, that being constituted the Supreme Court of Probate, to any person, (in our statute the appeal is given to “any party”) aggrieved by any decree, order or denial made by the Probate Court, it is held that a certiorari does not lie from the Supreme Court to the Probate Court.
In this case the judicial system of Massachusetts is likened to that of England, and the distinctions prevailing between the eclesiastieal and temporal courts in England are deemed to be operative in Massachusetts — this conclusion reached from a review of the early judicial history, of that State. Chief-Justice Shaw, speaking for the court, says of the jurisdiction of the temporal and spiritual courts in England: “ That each jurisdiction acting within its proper sphere was cautious not to encroach on the proper and just jurisdiction of the other, and for that reason the secular courts never interfered by way of writ of error or [546]*546certiorari or mandamus processes, devised to re-examine and affirm or reverse judicial decrees; but merely by writs of prohibition and other process designed to restrain find prevent them from the exercise of a jurisdiction not conferred upon them.”
Of the Probate Courts in that State he remarks that under the judicial organization there “the judicial proceedings in matters of probate were wholly independent, subject only to the appellate jurisdiction,” and that “ thus the distinction and entire separation between the jurisdiction of the ordinary or ecclesiastical court and that of the common law courts, with which all those conversant with the law and practice of England were always familiar, became as well settled in this province (Massachusetts) as in England.” This decision of the Supreme Court of Massachusetts is cited with approbation in In re Haney, 14 Wis., 421. In the Court of Appeals of Maryland in the case of Durham vs. Hall, 3 Harr. & McH., 352, a certiorari to the Orphans’ Court was quashed in 1795, while in 1793 the court determined “ that no writ of error will lie to the Orphans’ Court from the general court, but that a certiorari will.” We find no explanation of this apparent inconsistency. Under an early statute of New Jersey all final- sentences and decrees of the Orphans’ Court where no appeal is given to the prerogative court were subject to removal by certiorari into the Supreme Court. Pennington’s Reports, 914; 4 Halstead, 70. Such practice has prevailed in the State of Georgia, (T. W. P. Charlton’s Reports, 151,) under the 6th section of the third article of the Constitution in force in 1808, and we find in the Supreme Court of Alabama a case in 1844 (Cawthorne vs. Weisinger, 6 Ala., 717, Judge Ormond delivering the opinion,) in which certiorari is suggested as the proper remedy by which a creditor “who may conceive himself injured by a rejection of his claim may re[547]*547move the record into the Circuit Court and'have the question reconsidered.”
It is thus apparent that there is not perfect ^unanimity in the views entertained by the courts upon the subject, and that independent of some statutory or organic provision au. thorizing a certiorari to the Probate Court, it is at least doubtful whether the writ lies in such a case. In this State we think there is little room for doubt upon the subject, as by the express terms of the Constitution the jurisdiction of the County Court in probate matters is “ subject to the direction and supervision of the appellate and equity jurisdiction of the Circuit Court as may be provided by law.” We know nothing in the history of this State from which such a line of limitation of powers between the Probate Court and the other courts can be insisted upon as was the case in Massachusetts..
The obvious intent of the Constitution of this State is to make-the County Court, in the exercise of this jurisdiction, subject to a general supervisory and directory as well as appellate power of the Circuit Court, and we think that whenever a writ of certiorari is the proper remedy to correct an existing evil in the Probate Court, the potver of the Circuit Court to award it exists.
This brings us to" the question whether the alleged heirs at law, not-being parties to the proceedings to sell the real estate in the County Court, can have this writ to quash such proceeding.
As to an appeal or writ of error it is the rule that a party to the proceeding can alone prosecute it. We have examined all the cases upon the subject which we could find, and while we are left in some doubt upon the subject we think that the heir has such an interest in the subject that he is entitled upon a proper case shown in the discretion of the court to a certiorari. 33 Mich., 526; 12 Wend., 234; 3 Mass., 229.
[548]*548The next question here is, whether the Circuit Court obtained jurisdiction of the subject-matter, there being in the record no writ of certiorari as is alleged by appellant. By reference to the case as státed it will. be found that upon the filing of the petition with a partial record of the County Court in the matter of the estate of Foreman, the court endorsed on the petition, “ let writ of certiorari issue as prayed.” The return of the County Judge commences thus : “ In response to the mandate of the honorable the Circuit Court in this cause,” and the Circuit Court prefaces the final order with the words: “ Return to the order upon writ of certioraii having been duty made to this court,” &c.
The plain result from this record is, that while the court directed a certiorari to issue what did issue was according to the return of the County Court a “ mandate,” and according to the recital of the Circuit Court what it did issue was “an order upon the writ of certiorariWe do not find this order nor do we find a mandate or a writ of certioraii in the record, and we find the appellant here protesting and asserting at every stage of the proceeding that no such writ issued. The original writ of certiorari
Free access — add to your briefcase to read the full text and ask questions with AI
Mr. Justice Westcott
delivered the opinion of the court.
This is an appeal by the administrator from a judgment of the Circuit Court upon certiorari, whereby proceedings in the County Court for the sale of real estate to pay debts were annulled and vacated. We do not propose to consider the errors as assigned in the order of their assignment.
We have had occasion at this term, in the cases of Basnet vs. The City of Jacksonville and Edgerton vs. The [545]*545Town of Green Cove Springs, to announce our views upon the general subject of proceedings upon a common law writ of certiorari, and, as in this case, the question, is involved, we deem it proper to state that we have no doubt of our jurisdiction upon appeal to review the proceedings of the Circuit Court here; such is the practice in the courts of every State where a like jurisdiction to that of this court exists.
Relieving that there is no doubt of our jurisdiction to review this judgment of the Circuit Court upon appeal, the first question which meets us upon opening its record is whether it has jurisdiction of a certiorari to the County Court to bring up the transcript of the record of its judgment in the matter of a sale of land to pay debts of a decedent upon the petition of the administrator.
In the State of Massachusetts, where there was a statute somewhat similar to that of this State, (Chap. 1627, Laws,) which gave an appeal to the Supreme Court, that being constituted the Supreme Court of Probate, to any person, (in our statute the appeal is given to “any party”) aggrieved by any decree, order or denial made by the Probate Court, it is held that a certiorari does not lie from the Supreme Court to the Probate Court.
In this case the judicial system of Massachusetts is likened to that of England, and the distinctions prevailing between the eclesiastieal and temporal courts in England are deemed to be operative in Massachusetts — this conclusion reached from a review of the early judicial history, of that State. Chief-Justice Shaw, speaking for the court, says of the jurisdiction of the temporal and spiritual courts in England: “ That each jurisdiction acting within its proper sphere was cautious not to encroach on the proper and just jurisdiction of the other, and for that reason the secular courts never interfered by way of writ of error or [546]*546certiorari or mandamus processes, devised to re-examine and affirm or reverse judicial decrees; but merely by writs of prohibition and other process designed to restrain find prevent them from the exercise of a jurisdiction not conferred upon them.”
Of the Probate Courts in that State he remarks that under the judicial organization there “the judicial proceedings in matters of probate were wholly independent, subject only to the appellate jurisdiction,” and that “ thus the distinction and entire separation between the jurisdiction of the ordinary or ecclesiastical court and that of the common law courts, with which all those conversant with the law and practice of England were always familiar, became as well settled in this province (Massachusetts) as in England.” This decision of the Supreme Court of Massachusetts is cited with approbation in In re Haney, 14 Wis., 421. In the Court of Appeals of Maryland in the case of Durham vs. Hall, 3 Harr. & McH., 352, a certiorari to the Orphans’ Court was quashed in 1795, while in 1793 the court determined “ that no writ of error will lie to the Orphans’ Court from the general court, but that a certiorari will.” We find no explanation of this apparent inconsistency. Under an early statute of New Jersey all final- sentences and decrees of the Orphans’ Court where no appeal is given to the prerogative court were subject to removal by certiorari into the Supreme Court. Pennington’s Reports, 914; 4 Halstead, 70. Such practice has prevailed in the State of Georgia, (T. W. P. Charlton’s Reports, 151,) under the 6th section of the third article of the Constitution in force in 1808, and we find in the Supreme Court of Alabama a case in 1844 (Cawthorne vs. Weisinger, 6 Ala., 717, Judge Ormond delivering the opinion,) in which certiorari is suggested as the proper remedy by which a creditor “who may conceive himself injured by a rejection of his claim may re[547]*547move the record into the Circuit Court and'have the question reconsidered.”
It is thus apparent that there is not perfect ^unanimity in the views entertained by the courts upon the subject, and that independent of some statutory or organic provision au. thorizing a certiorari to the Probate Court, it is at least doubtful whether the writ lies in such a case. In this State we think there is little room for doubt upon the subject, as by the express terms of the Constitution the jurisdiction of the County Court in probate matters is “ subject to the direction and supervision of the appellate and equity jurisdiction of the Circuit Court as may be provided by law.” We know nothing in the history of this State from which such a line of limitation of powers between the Probate Court and the other courts can be insisted upon as was the case in Massachusetts..
The obvious intent of the Constitution of this State is to make-the County Court, in the exercise of this jurisdiction, subject to a general supervisory and directory as well as appellate power of the Circuit Court, and we think that whenever a writ of certiorari is the proper remedy to correct an existing evil in the Probate Court, the potver of the Circuit Court to award it exists.
This brings us to" the question whether the alleged heirs at law, not-being parties to the proceedings to sell the real estate in the County Court, can have this writ to quash such proceeding.
As to an appeal or writ of error it is the rule that a party to the proceeding can alone prosecute it. We have examined all the cases upon the subject which we could find, and while we are left in some doubt upon the subject we think that the heir has such an interest in the subject that he is entitled upon a proper case shown in the discretion of the court to a certiorari. 33 Mich., 526; 12 Wend., 234; 3 Mass., 229.
[548]*548The next question here is, whether the Circuit Court obtained jurisdiction of the subject-matter, there being in the record no writ of certiorari as is alleged by appellant. By reference to the case as státed it will. be found that upon the filing of the petition with a partial record of the County Court in the matter of the estate of Foreman, the court endorsed on the petition, “ let writ of certiorari issue as prayed.” The return of the County Judge commences thus : “ In response to the mandate of the honorable the Circuit Court in this cause,” and the Circuit Court prefaces the final order with the words: “ Return to the order upon writ of certioraii having been duty made to this court,” &c.
The plain result from this record is, that while the court directed a certiorari to issue what did issue was according to the return of the County Court a “ mandate,” and according to the recital of the Circuit Court what it did issue was “an order upon the writ of certiorariWe do not find this order nor do we find a mandate or a writ of certioraii in the record, and we find the appellant here protesting and asserting at every stage of the proceeding that no such writ issued. The original writ of certiorari should always be sent to the Circuit Court with the return of the tribunal or officer to whom directed. Such is the rule governing a writ of error and the same rule obtains as to a certiorari, as there is no difference in this respect between the practice upon these writs. 6 Wall., 355; 22 How., 88.
It has been held that “where a writ of certiorari has been ordered by the Circuit Court or Judge, but not issued or returned with a transcript of the record, there is nothing before the court for adjudication though the case be docketed,” (21 Ark., 264,) and that “ it. is essential to the jurisdiction of the Circuit Court in a proceeding by certiorari that the writ issue and be returned with a transcript of the [549]*549proceeding sought to be quashed, unless the writ and re-, turnare waived.” 30 Ark., 148; 23 Ark., 107. As to the form of .the writ and its service, see 2 Evans’ Pleading, 413; 9 Wheat., 526; 6 Pet., 166; 4 How., 590; 91 U. S., 146. Here nothing was waived,-and as no writ of certiorari appears in this record, we think the court should not have proceeded without it to hear and determine the case;' Eor this error we would be obliged to reverse this judgment, but as the matters involved in the appeal have been discussed by the parties, and as our judgment upon a review of the record is consistent with the judgment which would follow the want of a writ of certiorari, we will examine the matter as presented.
In this court, as we -understand the view of the appellee* he maintains the correctness of the j udgment of the Circuit Court upon two grounds.
"The.first is that upon the face of the return the County Court acted without jurisdiction ; and the second is that the debt alleged to exist was a stale claim.
The proceeding in the County Court was a petition to sell real estate to pay debts. As to the matter of jurisdiction, it is insisted, first, that the petition is defective in that it does not show whether Foreman died testate or intestate.
From the record of the County Court it abundantly appeared that the party filing this petition had been appointed administrator de bonis non of the estate of Foreman. The requirement of the statute is that the executor or administrator shall file his petition under oath, setting up the facts which authorize the sale, and if the petition purports to be filed by an administrator, and the evidence of his appointment is upon the records of the court, and he is appointed by that court, as in this case, certainly no additional evidence of the appointment is necessary, nor is there any [550]*550necessity of any other allegation, than that he is the administrator. It is not necessary that the administrator should append as an exhibit to each of his acts in the County Court a certified copy’ of his letters in order to give validity to the action of the court. The record here certified to. the County Court shows his appointment, and the allegation that he is administrator, and the record of the administration of the estate before the Circuit Court disclosed that while there may have been a will, it was treated and held void and an administrator was appointed.
The second objection is that if the estate was testate it does not show whether any. authority was conferred by the will to sell for the payment of debts. As we have said, the proper appointment of the administrator appears, and that negatives the existence of any valid will. In addition to this it may be said that the appointment of Deans as administrator, and that he was such administrator, is alleged and admitted by the petitioners in their petition for a ce>tiomri.
The third objection to the jurisdiction is that it does not set up whether the estate was solvent or insolvent. No such allegation is required by the statute to be in the petition. Sec. 4, Chap. 1732, Laws. If the jurisdiction of the County Oourt to sell the real estate of decedents was restricted to solvent estates, the necessity of an allegation of solvency as a jurisdictional fact might perhaps be insisted upon, but the jurisdiction of the County Courts exists to sell the land of both solvent and insolvent estates. It is only necessary as to this particular matter that it appear that there is an estate, and if the facts, the existence of which is necessary to give jurisdiction in either a solvent or insolvent estate, are set up. in the petition, it is sufficient. In this case the allegation is that there is no personal property of said intestate, and the court in- its final order finds that the personal property was exhausted.
[551]*551It is insisted further that the petition does, not allege affirmatively that in fact debts exist against the estate. - The allegation in the petition is that “ the demands existing against said estate amount to the sum of twenty-two -thousand six hundred and sixty-five dollars, as appears by the schedule hereto annexed marked A. and reference, therein made, which he prays -with the. reference may be taken-as part of this petition.” We find schedule A. to .'be an account, made out in favor of Augustus E. Bass and Job Bass, for the sum stated, and as ah evidence- of his correctness there is a reference in the body of it tó the proof Of the claim in the records of the estate; that proof is detailed in the statement of the case. The claim had been admitted by the administratrix. The petition sets- up that • this is a lawful debt and demand existing against the estate, and makes the claim as presented and the proof of it a part of the petition. This is clearly a sufficient allegation of the existence of the debt. It not only alleges its existence, but lays the proof of it before the court.
We had occasion to examine these jurisdictional questions in the case of Hays’ Administratrix vs. McNealy, 16 Fla., 409; Emerson vs. Ross, 17 Fla., 122, and Price et. al. vs. Winter, 15 Fla., 103, and the conclusions there reached sustain our views here expressed.
The last ground upon which the judgment of the Circuit Court is sought to be sustained here is that the debt was extinguished by the lapse of time.
We do not propose to enter upon an examination or discussion of the cases cited upon this subject, or the principles of equity -which prevail in respect to it.
In this case the administrator denies that these petitioners are the heirs at law of Foreman. He affirms the existence of this debt, and seeks to sell real estate to pay i-t. These petitioners allege that they are the heirs at law of Fore[552]*552man, and while not denying the original existence of the debt, allege that is a stale claim. In the meantime the creditor, the existence of whose alleged debt is being made the basis of all these proceedings, is no part}' to the proceeding. We have had occasion at this term to examine to what extent the powers of the Circuit Court exist and its jurisdiction upon a certiorari, in the cases of Basnet vs. City of Jacksonville and Edgerton vs. Green Cove Springs. It does not extend to the determination of this question of stale claim, nor do we see how the fact that the petitioners are the heirs at law of Foreman can be made- an issue or determined in this proceeding. It was not in issue in the proceedings in the, County Court, and we cannot see'ho >v, upon a writ of certiorari, such a matter can be determined.
If the administrator is guilty of iv devast wit, or if he is paying or seeking to pay debts which he should not, there is certainly a remedy, but that is not a certiorari, which, as a general rule, only goes to. jurisdiction and Legality or regularity in procedure. There are some cases which go beyond this, (29 Wis., 444; 69 N. Y., 411;) but even if the doctrine as thus modified is correct, this case is beyond it.
Judgment reversed, and the case will be remanded with direction to dismiss the petition.