#### Rottmann, *Administrator, Appellant,*v. Schmucker *et al.*

1. Probate Courts, Judgments and Orders of: jurisdiction . Probate courts are courts of general original jurisdiction in all matters pertaining to the administration of estates of deceased persons, and their judgments and orders in such matters are entitled to the same presumption of verity as is accorded to those of courts of general jurisdiction proceeding according to the course of the common law.

3.--: -. Probate courts have unlimited power, during the whole of the term, over their judgments, and may modify, vacate, or set them aside, as justice demands. They only become absolute upon the adjournment of court for that term.

8.--• city OR ST. lotos. The probate court of the city of St. Louis has power to set aside its judgment by default, during the-term at which it was rendered.

*Appeal from SL Louis Qourt of Appeals.*

Affirmed.

*Thos.*A. *Russell*and *E. P. Johnson*for appellant.

The original judgment rendered by the probate court against Schmucker, as surety on the bond of Lange, was in strict accordance with'the statutes and was a valid judgment. R. S., sec. 49 ; *Wioltham r>.*Page, 49-Mo. 526 ; *Brown v.*Weatherby, 71 Mo. 152; *Morehouse v. Ware,*78 Mo. 100. The answer admits that this was-a judgment regularly obtained. The cause was triable by a jury: R. S., sec. 3600. A court trying issues of fact sits as a jury and gives a general verdict. *Wie~ landy r. Lemuel,*47 Mo. 322. The finding of facts by a court is regarded as a special verdict of a jury. *BarTcer v. Beudder,*56 Mo. 272; *Uoldin v. Vaughn,*64 Mo. *140.588. Setting aside the judgment and granting a new .trial was in effect granting a new trial, which the probate court had no power to do. *Bartlioig v. Jaonesooi,*44 Mo. 141. Probate courts are inferior courts and ■courts of limited jurisdiction, and can exercise no power except what is specially conferred on them by law. *Renielc v. St. Louis*Qouoity, 38 Mo. 403 ; *State ■ex rel. v.*Laughlioi, 73 Mo. 443 ; R. S., sec. 1187. The remedy is by appeal. R. S., secs. 292, 299. Inferior ■courts and courts of limited jurisdiction have no power to grant new trials. *Bao'tlioig v.*Jameson, 44 Mo. 141; *Pitts v. Cao'r,*61 G-a. 454; *King v.*Mayor, 3 Neville & Manning’s Reports (Eng.) 877; *People 0). Sessions, 2*Cain’s Cases, 219 ; *People 0). Dalton,*15 Wend. 581-584 ; *People v. Judges, 2*Barb. 282; Hilliard on New Trials, sec. *2,*p. 2; 2 Tidd’s Practice [4 Am. Ed.] 905, and cases cited. “Where the proceedings of inferior courts, whose method of procedure is not in accordance with the course of the common law, are called in question, the jurisdiction being special and limited, they are confined strictly to the authority given.” *Cunningham v. Railroad,*61 Mo. 33-36; *Qibsooi r. Vaughoi,*61- Mo. 418-420; *Slate*». *Metzger,*26 Mo. 65 ; *Haoisberg n. Railroad,*43 Mo. 196-200 ; *St. Louis v. Tiefel,*42 Mo. 578 ; *State ex rel.*■». *Laughlin,*73 Mo. 443. Probate courts in their proceedings are not according to the course of the common law. *Smith v. Riee,*11 Mass. 507; *Caldwell 0). Loeltridge,*9 Mo. 362. The motion should have been made within four days. 2 Tidd’s Practice [4 Ed.] 912.

*Kehr & Tittmaom*for respondents.

The sole question in the case is, whether the probate court of the city of St. Louis has. power to set aside its own judgment by default during the term at which it is rendered. The court may set aside, alter, or vacate *141any judgment during the term at which it is rendered, for, during the term, all the proceedings are in the breast of the court. R. S., secs. 1023 and 1175 ; *Ashley v. Glasgow,*7 Mo. 820; *OaldweTl v. Loelcridge,*9 Mo. *363-4; Price v. Johnson Go.,*15 Mo. 433; *McGabe v. Lewis,*76 Mo. 301 ; Freeman on Judgments, sec. 90; *Hill v. St.*Louis, 20 Mo. 586-7; *Harter r>. Railroad,*32 Mo. 425; *Downing v. Still’s Adnn’r,*43 Mo. 309*Randolph v. Sloan,*58 Mo. 155.

Brace, J.

The question in this case arises upon plaintiff’s demurrer to the defence set up in the answer.

The petition alleges that, in 1873, John H. Langewas appointed administrator of the estate of H. II. Bohlmann, deceased, by the probate court of the city of St. Louis, and gave bond as such in the sum of five thousand dollars, with defendant, Bernard Schmucker, as his security. Lange’s letters were revoked in 1878, and the plaintiff, Rottmann, was appointed administrator, *de tonis non,*who, thereafter, instituted proceedings and recovered judgment in said probate court against defendant, Schmucker, on said bond for five thousand dollars. “Which judgment,” the petition declares, “is in full force.” The petition then charges-that in 1877 the defendant, Schmucker, made a voluntary conveyance of his property to one John Gr. Marstall, who-subsequently conveyed the property to the defendant, Catharine Schmucker, in fraud of the claims of the estate of said Bohlmann, and the petition prays that said conveyances be set aside and the property be subjected to the payment of said probate court judgment.

The answer admits the allegations of the petition in regard to the administration of the Bohlmann estate, the giving of bond by defendant, and the recovery of a judgment in the probate court against Schmucker, but denies each and every other allegation of the petition. The answer then affirmatively alleges that, at the Sep*142•¿ember term, 1883, of said probate court, to-wit: On the fifteenth day of September, 1883, the plaintiff, as administrator *de bonis non*of the estate of said Bohlmann, in a proceeding theretofore instituted by him jointly against the said Lange as the principal and the said Schmucker as surety on the bond recited in the plaintiff’s petition, recovered .a joint judgment against said Lange for the •sum of $7,040.67, and, by default against said Schmucker for the sum of five thousand, dollars, and that the said judgment is the only judgment that was ever rendered In said court in plaintiff’s favor and against said Lange and the defendant, Schmucker, and is the judgment referred to in plaintiff’s petition; that, thereafter, and during said September term of said probate court, ¿o-wit: On the sixteenth day of October, 1883, the defendant, Bernard Schmucker, filed his motion to set aside and vacate said judgment; that plaintiff was notified of the filing of said motion, and appeared to the same, and that, thereafter, and at its said September -term, the probate court sustained said motion and set -aside and vacated said judgment.

The plaintiff demurred to the affirmative or new matter contained in the answer upon grounds spécifically stated, which are in substance that the probate court had no authority to set aside its judgment, and that the motion to set aside the judgment was not filed within four days after the rendition of the judgment. The circuit court overruled the demurrer to the answer, and, plaintiff declining to plead further, dismissed the plaintiff’s bill and he appealed.

The only question in the case is, whether the probate court of the city of St. Louis has power to set aside its judgment by default during the term at which it was rendered. No question arises upon this record as to the power of the probate court to set aside .the verdict of a jury and grant a new trial, consequently the authorities cited by counsel for appellant, from which the conclusion *143is drawn that the probate court has not such power, are not in point, nor is the argument that, conceding the court has such power, that it must be exercised within four days after trial, pertinent to the issue to be determined. The plea shows a judgment by default. No jury was in fact called, no verdict returned, nor did the court try any issue in the case sitting as a jury. It is conceded that the judgment was rendered in a proceeding in the probate court under section 49, article 2, chapter 1, Revised Statutes, 1879, and is the ordinary proceeding in relation to the administration of estates in case of the removal of one administrator and the appointment of another, wherein-the court, upon final settlement with the former, ascertains the amount of money and assets in his hands, and orders the same to be turned over to his successor, rendering judgment in favor of such successor for the recovery thereof against such former administrator and his sureties after due notice. ■

The whole proceeding is regulated by article 2, supra, and the orders and judgments rendered under the provisions stand upon exactly the same footing as the other orders and judgments of the probate court, in the exercise of its ordinary jurisdiction in the administration of estates. No trial by jury is contemplated or provided for in the act, and none could have been called in the proceeding which resulted in the judgment against the defendant, which was set aside at the same term it was rendered. And, as before stated, the only question is, “had the probate court power to set aside such judgment during the term at which it was rendered?” The probate court is a court of record, holding regular terms at stated periods, with general original jurisdiction in all matters pertaining to the administration of estates of deceased persons. Its judgments and orders in such matters are entitled to the same presumption of verity as is accorded to those of courts of general jurisdiction, proceeding according to the course of the common law *144*(Camden v.*Plain, 91 Mo. 117, and authorities cited), and if of the same dignity, it would seem that the court by which they are rendered ought in reason to be possessed of the same power over such orders and judgments as is conceded to courts of general jurisdiction, in order that such judgments may be surrounded by the same safeguards, and be maintained in such a state of approximate perfection as to be worthy to be measured by the same standard of excellence.

That a court of general jurisdiction, proceeding according to the course of the common law, has unlimited power during the whole of the term over its judgments rendered at such term is a rule of universal application. Freeman on Judg., sec. 90. Until the end of the term its judgments are in the breast of the court, and may be-modified, vacated, or set aside, as justice demands, becoming absolute only upon the adjournment of the court for that term, and no good reason is perceived why the same rule should not apply to those j udgments of the probate court, whose verity is as unquestionable after they become absolute as those of the circuit courts; that it should so apply, is easily deducible from the principles enunciated in the following authorities, where the question of the power of county and probate courts-over their orders and judgments, during the term at which they were made or rendered, have been considered and discussed by this court: *Caldwell v.*Lockridge, 9 Mo. 358; *Price v. Johnson*County, 15 Mo. 433; *State ex rel. v. Treasurer Callaway*County, 43 Mo. 228; *Bartling v.*Jameson, 44 Mo. 141; *McCabe v.*Lewis, 76 Mo. 296.

The demurrer to the plea was properly overruled and the judgment of the circuit' court is affirmed.

All concur, except Ray, J., absent.