Idaho semi-weekly world. [volume] (Idaho City, Idaho Territory) 1875-1908, 1882-02-28

ne petitioner answering the re-
turn of the officer alleges:
First. That the Probate Court had
no Jurisdiction to issue the commit
ment.
Second. That the Judgment upon
winch the commitment was issued is
for contempt and the penalty is in ex
cess OF the power of the Court to i'm
pose in such cases.
Third. The commitment is unau-
thorized by law and void.
In support Of the first proposition.
that the Probate Court had no iuris-
diction to issue the commitment it is
urged by counsel for the petitioner.
that inasmuch as the will of Michael
Nolan designated said Stokes as ex-
ecutor without bonds, it was not in the
power of the Probate Court to require
bonds unless it was shown to be nee
essary, as provided in section 70 Of
the Probate practice act; and that, the
Probate Court being Of limited and
statutory jurisdiction the fact that
such cause was shown, must appear
affirmatively upon the record in order
to show jurisdiction. Upon habeas
corpus the record upon which con-
viction or commitment is founded can
not be e.iewed except for the pur-
pose of determining whether or not
the tribunal had jurisdiction to render
the judgment Or issue the warrant
Any errors or irregularities in the man
ner of exercising the jurisdiction,
merely, must be taken advantage of
by such direct proceeding as is author.
ized by statute, such as an appeal or
writ of error. 1t therefore becomes
important to inquire in Nmine whether
admitting the claims of petitioner to
be trnc, in the matter complained of,
as above stated, it relates to ques-
tion of jurisdiction, or onl y to the
mode of its exercise. Jurisdiction
What is it? AS we understand it, il
is the power and authority over, and
to deal with the subject matter, and
the person. Courts of limited, statu-
tory jurisdiction must look to the stat
utes for their grant of power and au-
thority as to the subjects with which
they may deal, and for the manner OF
bringln.; the persons interested in the
subject, under their authority and con.
troll. Whenever it affirmativcly ap.
pears from the statutes that they have
jurisdiction over the subject matter
and that they have brought the persot
interested in it, under their authority
by the means or process prescribed by
law; or that he has voluntarily sub
mitted himself to that authority, by
an appearance, the jurisdiction is es'
,ablshed, and all else belongs and re-
latcs to the exercise of the power, anc
not to the power itself. 1t is very
common error, to conlound jurlsdc
tion with the mode of its exercise
want of jurisdiction with error or ir'
regularity in the exercise of it, where
as there is in fact marked dlstlnc
ton between them; and in tho conse'
ouences attaching to them. Want o
jurisdiction rendering everything done
absolutely void, while error in its ex
ercise only has the effect to make the
doings voidable in so far as they are
erroneous. The one never can bt
cured while the other may be corrected
by the higher tribunal on appeal
Now let us make application. Sec
ton 70 of the Probate Practice Act Ii
as follows:
| "Where it is expressly provided in the will OF
testator that no bond shall be required OF the exec
utor. letters testamentary may issue "ithout am
| hond having been given; but an executor to WHOM
letters have been issued witheut bond may at au.
| time atterward whenever it may be shown IRON
any cause to be nece ,sary or proper, be require
| to appear and file bond, as i'll other cases :.
Here the power, the authority, Jn
risdiction is conferred on the Probate
Court. notwithstanding it is provided
in WILL that the person named as eS
ecutor need give no bonds, to require
him to file "a bond. This gives Jurls
diction of the subject matter. Inc pc
titioner here now, was in that Conr'
then. upon his own petition Tor the
proof of the will and for letters tesla
m, ntary and that gave jurisdiction ol
the person. If the Court required
bonds without cause or without sum
cient cause shown, which is not to be
presumed, it erred in the exercise OF