Smith v. Andrews

The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

The demurrer to the plaintiff's declaration was well taken. Probate Courts are of inferior and limited jurisdiction, and in pleading their judgments, it is necessary to set out the facts which give jurisdiction.

In England, Courts are divided into such as are of record, and those that are not. Courts of record are supreme, superior or inferior. Inferior Courts may be defined to be those whose jurisdiction is limited and special, and whose proceedings are not according to the course of the common law. Inferior Courts axe bound, in their original creation, to causes arising within such limited jurisdiction; hence it is necessary for them to set forth their authority, for nothing shall be intended within the jurisdiction but what is expressly alleged to be so.'' Bac. Abridgment, title Courts, p. 630.

In the case of Wilson v. Dunbar, 4 Cal. 313, so much of the opinion as related to the introduction of the record of the Probate Court was obiter, as the acts of Edward E. Dunbar were afterwards ratified by Frederick Dunbar. The mistake probably arose from the fact, that the respondents did not resist the reversal, and the Court was thus led into a hasty and erroneous expression of opinion. We, however, avail ourselves of this early opportunity to correct the error.

Judgment reversed, and cause remanded.