The opinion of the court is not supported by authority. It would seem from an analysis of the opinion that the amount sued for, $416, an amount that is within the jurisdiction of the circuit court, is the controlling factor in a determination of the validity of the judgment, appealed from to this court.
The circuit court would have jurisdiction of the amount when that jurisdiction is properly invoked, either by the filing of a suit in the circuit court according to the usual or statutory processes provided by law, or that jurisdiction may be invoked by an appeal, in crises of this kind, from an order of the probate court.
Sections 34 and 35, article 7 of the Constitution, of 1874, are as follows:
34. "The judge of the county court shall be the judge of the court of probate, and have since exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind and their estates as is now vested in the circuit court, or may be hereafter prescribed by law. The regular terms of the court of probate shall be held at the times that may hereafter be prescribed by law.
35. "Appeals may be taken from judgments and orders of the probate court to the circuit court under such regulations and restrictions as may be prescribed by law." These constitutional provisions and 2258 of Crawford Moses' Digest, which is the statute governing appeals from the probate court, provide a method of invoking the jurisdiction of the circuit court upon an appeal from an order and judgment of the probate court. It is exclusive.
Said 2258 is as follows:
"Appeals may be taken to the circuit court from all final orders and judgments of the probate court at any time within twelve months after the rendition thereof by the party aggrieved filing an affidavit and prayer for appeal with the clerk of the probate court, and upon the filing of such affidavit the court shall order an appeal at the term at which such judgment or order shall be rendered, or at any term within twelve months thereof. *Page 969 the party aggrieved, his agent or attorney, shall swear in said affidavit that the appeal is taken because he verily believes that he is aggrieved, and is not taken for the purpose of vexation or delay. And any heir, devisee, legatee or judgment-creditor of an estate, who feels aggrieved, may at any time within six months after the rendition thereof prosecute an appeal to the circuit court from any final order or judgment of the probate court by filing an affidavit and prayer for appeal with the clerk of the probate court together with a bond to pay the costs of the appeal if the judgment of the probate court is affirmed, and upon the filing of such affidavit and [bond] for the cost to be approved by the clerk, the court shall make an order granting the appeal at the term at which said judgment or final order shall be rendered or at any term within six months thereafter. And any such heir, legatee, devisee or judgment-creditor of an estate may likewise, upon executing bond for costs, prosecute an appeal to the Supreme court from the circuit court."
The instant case is distinguished in the opinion from the case of Speed v. Fry, 95 Ark. 148, 128 S.W. 854, by reason of the fact that in the Speed case the amount involved was $95.25, which was not sufficient to give the circuit court original jurisdiction. Therefore, it must have reached the circuit court, if at all, by proper appeal.
In the case of Matthews v. Lane, 65 Ark. 419,46 S.W. 946, there was a motion filed to dismiss the appeal. But both these cases reached the Supreme Court by appeals from judgments of the circuit court in which the parties in each case took part in the trials.
In the case of Miller v. Oil City Iron Works,184 Ark. 900, 45 S.W.2d 36, it was contended that the appeal had not been granted within the time allowed by law, and the motion was filed in that case to dismiss the appeal because it was not taken in time. The circuit court overruled that motion, and, the evidence offered upon the motion not having been brought forward in the bill of exceptions, the Supreme Court had to indulge the presumption that the trial court was correct, and it furnishes no authority or basis for the new theory advanced in this case. *Page 970
In the case of Matthews v. Lane, supra, the note sued on was for $1,000 and was filed for allowance in the probate court. The claim was disallowed in the probate court, and Matthews attempted to appeal to the circuit court, and there, upon motion of Lane, his appeal from the probate court was dismissed. Matthews did not take proper steps to bring up the record to show his appeal was proper, but he appealed from the order of the circuit court, dismissing his appeal. Lane's motion to dismiss the appeal is not set out in this case, but, if the suit had been filed in the circuit court originally, and Lane had filed a motion to dismiss for want of jurisdiction, it would have been an entry of appearance, and he would have then been required to answer.
In the case of Tharp v. Barnett, 93 Ark. 263,124 S.W. 1027, this court construed the section providing for appeals in probate court, using this language: "The law is analogous to that governing the procedure in appeals from justice to circuit courts and from circuit courts to this court under similar statutes." The court held further in that case that the circuit court being without jurisdiction, it was error to render judgment for costs.
Causes rightfully originating in the probate court may reach the circuit court only by appeal. To that proposition we all agree.
In the case of Walker v. Noll, 92 Ark. 148,122 S.W. 488, a formal affidavit was tendered by the attorney, who handed to the probate clerk an affidavit, proper in form, signed by himself with the remark: "I will swear to this," and without further formality left the office. The circuit court held this affidavit sufficient and tried the case upon its merits. This court reversed that case, for the reason that the appeal was not perfected under the provisions of the statute governing appeals from the probate court to the circuit court and upon the theory that the affidavit was not properly presented to the court, and that no order granting an appeal was made after the filing of that instrument. The amount in controversy in that case is not shown by the opinion. It seems not to have made any difference. The court said: "The direct *Page 971 matter involved in the hearing of the appeal from this order was whether the appeal was taken in the manner prescribed by law. It was not therefore a collateral attack of that order." This court reversed that case with directions to dismiss the appeal. Numerous cases of this court have held that the affidavit and prayer for appeal from the judgment of the probate court do not invest the circuit court with jurisdiction unless the appeal be also granted by the probate court. Neale v. Peay,21 Ark. 93; Crow v. Hardage, 24 Ark. 282; Hanna v. Pitman,25 Ark. 275; Love v. McAlister, 42 Ark. 183.
In the case of Speed v. Fry, 95 Ark. 148,128 S.W. 854, Justice HART said this: "The record shows J. C. Speed filed an affidavit and prayer ford appeal in the usual form to the circuit court, but it does not show that the probate court made an order granting the appeal. This was necessary in order to give the circuit court jurisdiction." Citing Kirby's Digest, 1348; Matthews v. Lane, supra.
"This court has held that the appellee may waive the want of an affidavit for appeal in the circuit court by failing to move to dismiss. James v. Dyer, 31 Ark. 489. The reason is that the affidavit and prayer for appeal is a regulation for the sole benefit of the appellee. But the order of the probate court granting the appeal is a prerequisite to the right of the circuit court to exercise jurisdiction, and for that reason cannot be waived. It follows, therefore, that the circuit court should have dismissed the appeal because no order of the probate court granting it was made, and for this error the judgment will be reversed, and the cause remanded with directions to the circuit court to dismiss the appeal for want of jurisdiction." In that case there is no showing that any motion was ever made to dismiss the appeal in the circuit court.
It is true this was all appeal from a case in which the probate court had exclusive jurisdiction, a matter of the guardian's settlement, but the parties entered upon a trial in the circuit court without objection, as in the instant case. A judgment was rendered for $126, and Speed appealed to this court. He was also the appellant *Page 972 from the probate court. He attempted to invite the jurisdiction of the circuit court, the appellee tried the case there with him, was satisfied with it, did not raise the question of jurisdiction, and this question was apparently raised for the first time in the Supreme Court.
In the case of Williams v. Bowen, 116 Ark. 266,170 S.W. 221, in a controversy over a will, in which the probate court, of course, had exclusive original jurisdiction, the executor and other legatees, as stated by Chief Justice McCULLOCH, attempted to prosecute an appeal to the circuit court. They filed an affidavit with a transcript of the proceedings and lodged them in the circuit court, but the record did not disclose any affidavit or prayer for appeal to the probate court, or any order of that court granting an appeal. No motion was made below to dismiss the appeal, but the cause proceeded to trial before the court sitting as a jury, and it was insisted, for the first time, in the Supreme Court, that the judgment of the circuit court should be reversed for lack of jurisdiction, and it was urged by the appellees that this objection was waived by the parties proceeding to trial without moving to dismiss the appeal. The Chief Justice certainly had in mind that there was but one method of appealing from the probate court when he wrote the opinion. He says: "This question was expressly decided by this court in the case of Speed v. Fry, supra, where we said that `the order of the probate court granting the appeal is a prerequisite to the right of the circuit court to exercise jurisdiction, and for that reason cannot be waived.' Other decisions of this court bearing on that question are cited in the opinion." He also cited the case of Drainage District No. 1 v. Rolfe, 110 Ark. 374,161 S.W. 1034. That case was tried in the circuit court on appeal from the county court and in that case the matter of jurisdiction was raised in the Supreme court for the first time. It is true that in Williams v. Bowen, supra, and Drainage District No. 1 v. Rolfe, supra, original exclusive jurisdiction was in the probate court and county court, respectively. *Page 973
In the case of Mississippi County v. Moore, 126 Ark. 211,190 S.W. 110, Justice HART, in reversing the case, in his discussion said in argument: "Section 1348 of Kirby's Digest provides that appeals to the circuit court from the probate court shall be granted by the probate court. In construing this statute in the case of Speed v. Fry, supra, the court held that the order of the probate court granting the appeal is a prerequisite to the right of the circuit court to exercise jurisdiction, and for that reason cannot be waived. This rule was reaffirmed in the case of Williams v. Bowen, supra. The court held that it was the duty of the circuit court to dismiss the appeal for want of jurisdiction."
With all deference to the greater experience of any associates, the writer begs leave to offer the following suggestions:
The jurisdiction of courts in this State is fixed by the Constitution and the laws of the State. It is not sufficient to say that the circuit court has jurisdiction of a certain class of cases merely because the amount, as fixed by the Constitution or law, is sufficient. There are always steps to be taken by one who wishes to invoke that jurisdiction. In the circuit court there must first be filed a complaint. The defendant may be brought in by service or process, or he may enter his appearance. On appeals from justice of the peace courts, municipal courts, probate and county courts, certain things insist be done to invoke or call into action the jurisdiction of the circuit court. The circuit court can no more act upon these appeals unless proper steps are taken to invoke the exercise of that appellate jurisdiction by the circuit court, than it can in cases in which it has original or exclusive jurisdiction without proper procedure.
The statute prescribes a definite, certain, and complete method of perfecting appeals from the probate court. Unless this method be substantially followed, the circuit court is without power to exercise that jurisdiction. If there be all exception, it would have, in all probability, been suggested at some time.
We are saying now, in this opinion the writer is criticizing, that one who desires to take advantage of *Page 974 the fact that an appeal was not granted by the probate court must carefully prepare his motion, objecting solely to jurisdiction and reserving his rights thereunder, or he will be deemed to have entered his appearance and must go to trial, provided the amount in controversy be in excess of $100. In all of these appeal cases heretofore determined in this court, a motion to dismiss has been treated as the proper pleading, but by this new method of appeal, if it be all appeal, one dare not make a motion to dismiss without specially reserving his rights, for, if he should fail to do so, it will be treated as an entry of appearance. We so held in a per curiam opinion rendered in the case of Crain v. St. Francis Levee District, ante p. 721, and cited as authority therefor Federal Land Bank v. Gladish, 176 Ark. 267, 2 S.W.2d 696. Such must be the ultimate result of the opinion in this case when it is followed as a guide for future procedure.
It is unnecessary to cite authorities showing that the probate court is a court of superior jurisdiction. In the probate court a judgment was rendered. Under the statute there has been no appeal prayed for or granted, and that judgment is necessarily in force and effect. In the circuit court of Dallas County another judgment has been rendered on the same cause of action. Under the opinion rendered, that judgment is valid, and it must be conceded that it was not rendered on appeal from the probate court, because the decision is based upon the proposition of the original jurisdiction of the circuit court and not upon the matter of appellate jurisdiction from the probate court.
We therefore have the anomalous situation of two judgments relating to the same subject-matter. The first of which is impervious to collateral attack. It has not been attacked by appeal. The time to appeal from the judgment has probably expired. The second judgment, that of the circuit court, has no more vital force than the probate court judgment. The supervising power of the circuit court is exercised by appeal. The circuit court has no more power to reach over into the probate court and settle this controversy than has the probate court to pluck from the files of the circuit court the cause *Page 975 pending there. Shall we now create a new remedy, judicial in character, to correct this obvious error?
It is of no importance to the public generally as to how this case is settled. It is of the greatest importance to the members of the legal profession and to their clients to understand whether we shall follow the time-honored processes prescribed by statute. The circuit court should have dismissed the purported appeal upon its own motion. A failure to do that did not, and could not, give jurisdiction. We are dealing with a shadow that had no substance to produce it.
Mr. Justice BUTLER concurs.