In re Estate of Cloud

3 Ohio Cir. Dec. 666

• Court: Hamilton Circuit Court
• Decided: November 15, 1891
• Status: Published

Opinion

SWING, J.

We think the judgment of the court of common pleas should be affirmed.

In the first place, the probate court has no jurisdiction of the parties. The •notice by publication was not in accordance with the statute; there should have been six instead of five weeks’ notice.

The fact that the court finds that proper notice was given should not be taken as true, when the record discloses the fact to be that no legal notice was given.

In the second place, the court had no jurisdiction of the subject-matter. Section 6198, under which it is claimed the court had jurisdiction in this action, is not an independent section, but depends on sec. 6195, end no settlement and order of distribution had been made as required by said section. This was necessary before the court could proceed under sec. 6198.

The court not having jurisdiction of either the persons or the subject-matter of the action, its proceedings were void.

A motion was the proper remedy. The judgment of the court could not affect the rights of the parties, but it was a cloud on the rights of the parties and blot on the journal of the court, and it became the duty of the court, when called to its attention, to remove it.