Rock Island daily Argus. (Rock Island, Ill.) 1886-1893, 1889-07-24

ton was not in any way mistake OF
misprision of the clerk.
II Is claimed that as the statute says
that all matters cognizable at the probate
term shall also be cognizable at the law
terms. this case although a probate mat
ter, is cognizable at the law term.
But this proceeding is not cognizable
at probate term. having been improper
ly brought at a law term, where it now
stands on the law docket as a law case.
In order to entitle probate matter to a
hearing at law term it must be properly
instituted or it has no standing in court
IL is conceded that the case before us is
enormously on the law docket. Can the
court then. sitting as law court. enter
an order quashlng the summons and COM
tinuing the case with leave to issue a
summons returnable to probate term OF
the court? This would leave the case
still in the law court TO be heard and dis
posed of at probate term"
The proceeding was brought as a law
case, the summons was issued and made
returnable at law term. and it was
treated throughout as law case. and il
is still pending in the law court. The
court has decided that the summons was
improvidently issued and must be
quashed. but it has no power to order the
case continued and let the clerk issue a
summons returnable to the next probate
term. The court has no jurisdiction OF
the matter as a law court and can make
no order whatever in relation to it except
TO dismiss it at plaintiffs costs, and that
is the order entered herein.
LUcIAN ADAMS, County Judge.
The case will be appealed, but the
counsel for the complainant, Judge Will
klnson and VIM. McEniry, have not YET
been able in the face of the strange rul
ing to decide where to appeal it. Con
versing on the subject this morning
Judge Wilkinson remarked:
The opinion as filed by the court
seems to me to be confused and weak OIL
the question of the courts jurisdiction
To eptitle case to hearing before tn,
court. the court must have jurisdiction Of
the person of the defen dant, and also o
the subject matter to be tried. TIT
jurisdiction of the defendant is obtained
by summons from the court and served
on the defendant, and the court held oil
the hearing before it fortnight ago tina
the summons was improperly made re
tnrnable to the July term and for tina
cause qusshed the summons By tina
decision the court held that it had no ju-
risdiction over McConochie until anothe
summons should be issued and served on
hun. And that's all there is of tina
branch of the case"
The decision Yesterday was on tn,
defendants motion to dismiss the pro-
ceeding-throw 1t out Of court. Thi
the court could do only in case i
had no jurisdiction of the subject
that it did have jurisdiction thereo
seems to me beyond doubt. The only
thing required by law to Civ
to the court that jurisdiction was the I'll
ing by the contestant in the county
clerks Office of written statement set
ting forth his causes on contest within
thirty days after the result of the cleo
ton was declared. This was done; th,
written statement was filed with the of
ficer and within the time named, ant
such filing gave to the court, complet
jurisdiction of the subject matter of tn
contest
There was nothing in the statemen
lied showing whether it was probat
halter or law matter. but was a mer
/ statement in writing of the facts relied oil
: in the contest such as the statute re
Auired, and it was the duty of the cour
lsnd its officers to docket it. and file it i
Us proper place. If not so dockete
Ind filed the court should have cured th
tfect by having it properly done.
regard the whole proceeding as veal
, thugh successful effort, to get rid c
r tr5ngthe case on Its merits by dismissin
1t IN q mere technicslity"