Schulenburg v. Evans
Supreme Court of Missouri
Error to Cass Circuit Court. cited Charter of Cass Court of Common Pleas (Sess. Acts 1867, p. 88, § 23); State Const., Art. VI., §§ 1, 21; Ross v. Murphy, 55 Mo., 372. I. The writ of error is not a statutory but a common law writ, and will only lie where the proceeding in the court below was according to the forms of the common law.
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Error to Cass Circuit Court. cited Charter of Cass Court of Common Pleas (Sess. Acts 1867, p. 88, § 23); State Const., Art. VI., §§ 1, 21; Ross v. Murphy, 55 Mo., 372. I. The writ of error is not a statutory but a common law writ, and will only lie where the proceeding in the court below was according to the forms of the common law. (Bartling v. Jamison, 44 Mo., 141; State vs. Henly, 48 Mo., 531, and cases cited.) And it has universally been held that ■these writs do not lie from Probate Courts and courts proceeding in a summary manner. II. The Common Pleas Court of Cass county had probate…
1Opinion of the CourtSherwood, Judge
A claim was presented for allowance in the “Common Pleas Court,” of Cass county, against the estate of Torry, deceased; but judgment going in favor of the administrator of said estate, a writ of error was sued out, whereby the cause was taken to the Cass Circuit Court, where, upon motion of defendant, after assignment of and joinder in error, the writ of error was dismissed on the. ground that such writs did not lie “ in matters pertaining to probate business ;” and the correctness of this ruling is the only point for otir consideration which the record presents.
And an examination of § 23 of…
2Cases cited2 opinions
- Harper v. JacobsSupreme Court of Missouri · 1873
- Ross v. MurphySupreme Court of Missouri · 1874
3Cited by3 opinions
- McCraw v. HubbleSupreme Court of Missouri · 1875
- Schlueter v. AlbertMissouri Court of Appeals · 1890
- Cline v. BrooksSupreme Court of Missouri · 1877