The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1878-12-05
SUPREME COURT DECISION.
The Court of Probate Without Juristlic-
tlon In the Partition OF Real Estate-!in
Important Question Settled.

The Court of Probate Without Juristlic-
tlon in the Partition of Real Estate-.in
Important Question Settled.
The Supreme Court has filed its de-
cision in the case of Elihu Davenport ct
ur. against Elizabeth Caldwell. The
chief point of interest to the public is
contained in the following extract:
The fifth and eighth grounds of appeal
relate to the jurisdiction of the Court of
Probate in cases of partition of real es-
tate. If that court has no Jurisdiction in
cases for the partition of real estate, then
all its proceedings in relation thereto
were null and void, and should be so de-
clared. Where nothing appears on the
face of the proceedings to show want
of jurisdiction, and The objection is not
made in the court below, it cannot be
taken in the Court of Appeals. (Varncy
as. Voch, 8 Hill, 237. But, as was held
in Hill Us. Robertson. Strob., p. l, "the
proceedings Of court of limited juris-
diction in case clearly without its jurls-
diction are absolutely void, and may be
so declared wherever the question is pre-
sented, whether directly or collaterally."
Neither can failure to take objections at
the proper time, nor consent, can give
jurisdiction, (Gallman as. Gallman, 5
Strob., 2O7, J except in cases where, under
certain circumstances, the court might
take jurisdiction. (Iiller rs. Furne, Bail
ey's Eq., 1Sl.) Where the case is such
that, under no circumstances, could it be
brought within the jurisdiction, then OBJ
lection may be made at any stage of the
proceedings, as was said by Moses, c. j.,
in Walker as. Cresswell, S. G. Rep,
356: ave have no hesitation in saying
that, where there appears 10 be clear
want Of jurisdiction, the court is not pre-
vented from so declaring because the en-
ception is not made by the party against
whom it is to operate" And again ::
"When court takes cognizance of cases
in which the very nature Of its organiza-
ton prevents it from entertaining the
issues made between the parties, and its
means Of administration prevent an en-
forcement of any judgment it may there
in pronounce, the objection to its juris-
diction may be made at any time"
The objection, therefore, in this case;
although it should properly have been
made in the Circuit Court, has not come
too late, if, as contended, the Probate
Court has no jurisdiction in a case for
the partition of real estate, and the qucs-
tion must therefore be considered.
The act of the Legislature, Sec. II,
Rev. Stat, 573, does undertake to con-
fer such Jurisdiction. But the court
concurs in the views expressed by Moses,
c. j., in his separate opinion in Nc
Nance as. Waterbury, 4 S. z. Rep,
1878, that to determine the limits of the
jurisdiction of the Court of Probate, we
must look to the constitution, by which
instrument jurisdiction is conferred. In
this respect the constitution of 1SGS
differs widely from that of 1890. BY the
latter the judicial power of the State was
"vested in such superior and inferior
courts of law and equity as the Legisla-
ture shall, from time to time, direct and
establish" and it was left to the Legisla-
ture to distribute the judicial powers
amongst the several courts so establish
ed while by the former constitution of
1861 the judicial power is vested in the
several courts named, and in such mu-
nicipal and other inferior courts as the
General Assembly may deem necessary,
but the jurisdiction of each of those
named them tile Court of Pro-
bate-is defined and specified. The
jurisdiction thus defined and specified by
the constitution can be neither enlarged
or diminished by the legislative power of
the State, which is itself the creature of
the constitution, and controlled by the
provisions of that instrument which con-
stitutes fundamental law. Looking to
the constitution, then, for the limits of
the jurisdiction of the Court of Probate,
we find those limits defined in section
20, article 4, and, as there defined, cases
for the partition of real estate are not
embraced. The Court of Probate is, un-
questionably, court cf inferior and
limited jurisdiction; when the exercise
of any power is claimed for court of
that character, it must be shown to exist
by express grant, or to be necessarily
consequent upon some power clearly
given. The power here exercised by the
Court of Probate is not expressly grant
ed in the constitution, nor is it necessa-
riy consequent upon any power which is
given. The conclusion follows that the
power does not exist.
1t is possible that, had the decree of
the Court of Probate been firal in its
nature, its adoption by the Circuit Court
might have operated as decree or judg-
ment of that court, which, unquestion-
ably, has jurisdiction in partition of real
estate. But such is not the case, and
the decision of the Circuit Court, while
it affirms the decision of the Probate
Court, remands the case for further pro-
ceedings in that court. The judgment
of the Circuit Court, therefore, failed to
cure the defect of lack of jurisdiction,
and neither judgment can stand.
1t is unnecessary to consider the re-
naming grounds Of appeal, as they are
in effect disposed of by the conclusion on
the question of Jurisdiction.
The judgment of the Circuit Court is
reversed, and the case remanded, with
instructions that the proceedings in the
Court of Probate be dismissed, so far as
they relate to partition of real estate.
Opinion by Haskell, A. j.; Willard,
c. j. and McIver, A. j. concur.