The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1878-12-05
SUPREME COURr DECISION.
1hc Court OF Probate Without Juri,dic-
ZION IN the Partition of Real Estate - II
Important Question Settled.

The Court of Probate without Juri,dic-
lion In the Partition of Real Estate An
Important Question Settled.
The Supreme Court has filed It's de-
ci-ion in ,ha case of l.lihu Davenport It
nc. against Elizabeth Caldwell. The
chic; point OF interest to the public is
contained in the following extract:
The filth and eighth grounds of appeal
relate 10 Che jurisdiction Of the Court of
Probate IN cases of partition of real cs-
tate. II hat court has no jurisdiction in
eases for the partition of real estate. then
AL It's proceedings in relation thereto
were nn!l and void, and should be 50 de-
clar"'. Where nothing appear, on the
face o! the proceedings to Stow 4 want
oi jurisdiction, and the objection is not
male III the court below, it cannot be
taken IN the Court Of Appeals. (Nariicy
-. Noch, . Hill, 237.) Bat, as wa, held
III Hi tS. Robertson. ! StroD. D. l.. "thc
| proceedings Of court Of limited iuri,.
iictlon in Il case clearly without It's iur!s-
d'ction are absolutely void, and may be
so declared whtrey the question is pre-
/ scnt.i, whether directly or coiiatcraily."
! Neitiier can failure To take objections at
! the proper time, nor consent. can yive
jurisdiction, (Gallman a.. Gal!man. ,
: Str"b., 2o' y except IN cases where, under
i certain circumstances, the court might
! take juri, d;ction. Miller r.. Furne, Bail
| cy's EI., lSl.) Where the case i, siv!,
| That, Under no circumstances, could il be
brought within the jurisdiction, then OBJ
Jectioh may be made ut any stage of the
! proceedings, as WAS said By Moses, G.. j..
IN Walker IS. Crcs,wcll, / =. G.. Rcr.,
BOT I'VE have no hesitation in ,avin.,
that, where there appears 70 be :. clear
want OF jurisdiction, thc court is not ;,rc-
vented from so declaring because lie cx-
ccption Is not made by the party against
whom it is to operate" And again
| Nlen court takes cognizancc Of cases
III which the very nature OF its organiZn-
tion prevents it from entertaining the
issues ma"c between tho parties, and its
iheans oi administration prevent an en-
lorccmcnt of any judgment it RAY there
IN pronounce, the objection to its juris-
dictlon may be made 1T any time"
! The objection, therefore, in this case,
although it should properly have been
...;;'ic H. The Circuit Court, has not come
too late, it, "a contcndcd, the Probate
Court has no Jurisdiction in n case for
the partition of real estate and the oucs-
ton must therefore be considered.
The act of the Legislature, Sec. II,
Rev. Stat, 573, does undertake to con
Ter such jurisdiction. But the court
concnrs i'll the views expressed by Moses.
=. D.. III his separate opinion in Me-
Nance as. Waterbury, 4 S. G.. Rep.
l6I-S. that to determine the limits of the
jurisdiction of the Court Of Probate, we
must look to the constitution, bv which
Instrument jurisdiction is conferred. In
tliis respect the constitution Of lSGS
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 Legisa-
turc shall, from time 10 time, direct and
establish, and it WAS left to the LcgSa-
turc to distribute the judicial powers
amongst tie 5cveTIi c0iir;s 81 establish;
ed; while by the former constitution of
1868 the judicial power is vested in the
several courts named, and in such mu-
nicipal and other inferior courts rs the
General Assembly may deem necessary,
but the jurisdiction of each Of those
named amongst them the Court of Pro.
bate-is defined and specified. The
jurisdiction thus defined and specified by
the constitution can 0c 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
'lltutcs 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 t, and, as there defined, cases
for the partition of real estate are not
embraced: The Court of Probate is, un-
Iuesiionably, court of inferior and
limited Jurisdiction; when the exercise
OF any power is claimed for court of
that character, it must be shown to exist
hy 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 ncccssa-
My 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 n decree or judg-
ment OF that court, which, unQuestion-
AMY, has jurisdiction in partition of real
estate. But such is not the case, and
the decision Of the Circuit Court, while
1t atrms the decision of the Probate
Court, remands the case for further pro.
cccdings 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-
manning grounds Of appeal, as they are
in effect disposed OF by the conclusion on
the question jurisdiction
The Judgment OF the Circuit Court is
reversed, nnd the case rcmanded, with
instructions that the proceedings in the
Court of Probate be dismissed, so far ms
they relate to partition of real estate.
Opinion by Haskell, A. j.; Willard.
c. j. and Mclver, a. J. concur.
The Wils0n.Snnders Duc..