Yorkville enquirer. [volume] (Yorkville, S.C.) 1855-2006, 1878-12-05
SUPREME COURT DECISION.

SUPREME COURT DECISION.
THE COURT OF PROBATE WITHOUT JURISDIC.
TIoN IN THE PARTITION OF REAL ESTATE.
The Supreme Court has filed its decision
in the case of Eihu Davenport ct IT, against
Elizabeth Caldwell. The chief point of in.
terest to the pubic is contained in the fol.
lowing extract: ..-.
The fifth and eighth grounds of appeal re
late to the jurisdiction of the Court of Probate
in cases for the partition of real estate. II
that court has no Jurisdiction in cases for the
partition of real estate, then all its proceed
ings in relation thereto were null and void
and should be so declared. Where moth
ing appears on the face of the proceed.
ings to show want of Jurisdiction, and
the objection is not made in the court
below, it cannot be taken in the Court OF
Appeals. (Varney vs. Voch, 8 Hill, 237.)
But, as was held in Hill vS. Robertson,
Strob., p. l, "the proceedings of court Of
limited Jurisdiction in case clearly without
its jurisdiction are absolutely void, and may be
30 declared wherever the question is present
ed, whether directly or collaterally." Meth.
er can failure to take objections at the proper
time, nor consent, can give jurisdiction, (Gall
man U.s. Galman, 5 Strob., 207 y except in
cases where, under certain circumstance 8, the
court might take jurisdiction. (Miller Furne,
.Bailey's Eq, 1917 Where the case is such
That, under no circumstances, could 1t be
brought within the Jurisdiction, then objec
tion may be made at any stage of the proceed
ings, as was said by Moses, G. j., in Walker
Us. Cresswell, S. C.. Rep, 1856: "We have
10 hesitation in saying that, where there ap.
pears to be clear want of jurisdiction, the
court is not prevented from 80 declaring be.
cause the exception 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 organization
prevents it from entertaining the issues made
between the parties, and its means of admin.
istration prevent an enforcement Of any judg'
rnent it may therein pronounce, the objection
to its jurisdiction may be made at any time. y
The objection, therefore, in this case, al.
though it should properly have been made in
the Circuit Court, has not come too late, if
as contended, the Probate Court has no juris-
diction in case for the partition Of real estate
and the question must therefore be consider ed
The act of the Legislature, Sec. Al, Rev.
Stat, 573, does not undertake to confer such
Jurisdiction. But the court concurs in the
views expressed by Moses, G. j., in his sepa.
rate opinion in McNamee Us. Waterbury, a
S. G. Rep, 1878, that to determine the linn
its of the Jurisdiction Of the Court of Pro.
bate, we must look to the constitution by
which instrument jurisdiction is conferred.
In this respect the constitution of 1868 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 Legislature shall, from time to
time, direct and establish" and it was left to
the Legislature to distribute the judicial pow
ers amongst the several courts 50 established -;
while by the former CONSTITUTION of 1859
the judicial power is vested in the several
courts named, and in such municipal and
other inferior courts as the General Assembly
may deem necessary, but the Jurisdiction of
each of those named-amongst them the
Court of Probate-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 con-
sttution, and controlled by the provisions of
that instrument which constitutes fundamen-
tai 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, unques.
tionably, court of inferior and limited ju-
risdiction 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 clear
ly given. The power here exercised by the
Court of Probate is not expressly granted in
the constitution, nor is it necessarily conse-
quent 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 final in its nature, its
adoption by the Circuit Court might have
operated as decree or judgment of that
court, which, unquestonably, has jurisdiction
in partition of real estate. But such is not
the case, and the decision of the Circuit Court,
while it aAirms the decision of the Probate
Court, remands the case for further proceed
ings in that court. The judgment of the Cir
cult Court, therefore, failed to cure the de-
feet of lack of jurisdiction, and neither judg-
nent can stand.
The judgment of the Circuit Court is re-
versed, and the case remanded. with instruc:
tcns 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, G. j.
and McIver, A. j. concur.
beg A Washington telegram to the Baltimore
Sun, dated November q, says: Such of the
Democratic members of Congress as have ar
rived in the city give it as their opinion that
the coming session, which began last Monday,
will be devoted to business more than to bun
combe, so far as the majority of the House
are concerned The Republicans, flushed with
happiness over their improving prospects, are
preparing barbed arrows to shoot at their op.
ponents whenever opportunity offers. 1t will
require good management and much patience
under proyocation, for the Democrats to avoid
exciting political discussions, which can be
turned to their disadvantage. But the pur'
pose seems to be to put in the appropriation
bills as soon as possible, and lei work proceed
on them. A proper consideration OF these
bills will occupy the greater part OF the few
working weeks Of the session.