Maxwell v. Shoesmith

135 Ill. App. 114, 1907 Ill. App. LEXIS 477

Opinion

Mr. Justice Baker

delivered the opinion of the court.

The only question presented by this record is, whether the order of the Probate Court made at the July term, 1905, denying the prayer of the petition of the executors of the will of Asa H. Moore, deceased, to set aside a judgment in favor of said executors against appellee, Shoesmith, entered January 8,1904, is a final order from which an appeal may be taken to the Circuit Court.

In Sherman v. Whiteside, 190 Ill. 576-578, it was said: “The county court has such equitable jurisdiction in the administration of estates that it may in a proper case, at a subsequent term, set aside an order allowing a claim where fraud or mistake has intervened. (Schlink v. Maxton, 153 Ill. 447.) The facts alleged and proved to enable the court to set aside the claim must be such as would move a court of equity to entertain jurisdiction and set aside the judgment.” To the same effect is Ford v. First Nat. Bank, 201 Ill. 120.

The Probate Court, in the exercise of the jurisdiction conferred upon it, entered an order denying the prayer of the petition and dismissing the petition. This order was a final order and appealable under Section 11 of the Probate Court Act, which is as follows:

“Appeals may be taken from the final orders, judgments and decrees of the Probate Courts to the Circuit Court * * * in all matters, except in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate, * * * and upon such appeals trials shall be had de novo.”

The question of the sufficiency of the petition is not before us on this appeal.

• The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.