This action was instituted in the probate court under article 2176, Eevised Statutes, by several creditors of the estate of J. J. Nichols, which was in course of administration by his wife surviving, under the provisions of the statute.
On hearing, the probate court adjudged that there were assets of the estate liable for the payment of the creditors’ claims, and it ordered that citation issue to the sureties on the survivor’s bond, requiring them to appear at the next regular term and show cause why judgment should not be rendered against them for the sums due the creditors.
*651From the judgment thus rendered the survivor appealed to the district court, which rendered a judgment against the survivor and the sureties on her appeal bond for the sums due to the several creditors; and it directed execution to issue against her separate estate, and against any community estate of herself and her husband, she having married pending the appeal. Judgment was also rendered against her husband, to be paid as before stated.
That the district court had none other than appellate jurisdiction in this case is very clear.
The decision appealed from was only to the effect that the estate had not been properly administered, or that there were still assets liable to the payment of debts; and the only question to be decided by the district court was whether the decision of the probate court was correct.
The statute under which the probate court acted is as follows: “But should it appear to the court from such exhibit or from other evidence that such estate has been improperly administered, or that there are still assets of said estate that are liable for the payment of the applicant’s debt or any part thereof, and if said debt be for the amount of SI,000 or less, exclusive of interest, the court shall order citation to issue for the sureties upon the bond of such survivor, citing them to appear before such court at a regular term thereof, and show cause why judgment should not be rendered against them for such debt and costs, which citation shall be returnable as in other civil suits, and the proceedings in such case shall be the same as in other civil suits in said court.” R. S., 2178.
This article, in connection with that which precedes and that which follows it, manifests the intention of the legislature to authorize an action against the qualified survivor and the sureties on the bond, on an approved claim, after twelve months from the filing of the inventory, appraisement and bond, if a devastavit be shown, or if it be shown that the survivor still has assets subject to the payment of debts.
Whether the facts exist which authorize the action to be brought are evidently to be determined in the first instance by the probate court, and from its determination an appeal may be taken, by either party, to the district court, without reference to the amount of the creditor’s claim.
The question to be determined in the district court on appeal is the same question and none other than that passed upon by the probate court.
If it be decided by the probate court that the facts exist which *652authorize a creditor holding an approved claim to sue, and that decision be not appealed from, or, if appealed from, it be affirmed, then the right of such creditor to sue the survivor and the sureties on his or her bond cannot be again questioned.
The decision fixes that right, but does not determine any other right.
The purpose of the statute evidently was to prevent persons holding approved claims from unnecessarily involving estates in litigation and costs; but at the same time to give to such a creditor a means, involving but little expense, by which he could have determined whether suit be necessary to protect his rights.
We are of the opinion that the district court, on the appeal, was empowered to determine, as was the probate court, whether the grounds existed which authorized the creditors to sue; and that this was the only question it had jurisdiction to pass upon, as the matter was before it.
The statute evidently contemplates that the ultimate question of liability of the survivor and sureties to the creditor shall be determined in the county court for civil causes, or in the district court, as the one or the other may have jurisdiction, to be determined by the amount of the creditor’s claim.
Article 2179, Ee vised Statutes, in express terms, provides for an action in the district court of the proper county against the survivor and the sureties on the bond, if the amount due and payable to the creditor exceeds $1,000; and it excludes the idea that it was intended the ultimate liability of the survivor and sureties should be determined in or by the probate court.
It does give to that court the power to order the survivor to pay to the creditor the amount of his debt, when it exceeds $1,000, but it provides no manner in which such an order may be enforced against any person.
If the order be acquiesced in by the survivor and the creditor’s claim paid, that is an end of the matter; but if it be not paid, then the creditor at the end of thirty days may have and is driven to his action in the district court as the only source of relief.
What effect, as evidence in the district court, certified copies of the proceedings in the probate court may have, is not declared by the statute, nor need it be now considered.
The claims of the creditors sought to be enforced in this case each amount to less than $1,000, and consequently must be governed by the provisions of article 2178, Ee vised Statutes.
Oounty courts, under the constitution, exercise jurisdiction in civil *653cases, which in the constitution is termed “civil jurisdiction;” in criminal cases, which is termed “criminal jurisdiction;” and they also exercise the general jurisdiction usually given to probate courts.
It is the “ county court,” however, whether exercising the one or the other class of jurisdiction, and its terms for civil and probate business are the same, and its officers the same.
The statute does not seem to contemplate that the survivor shall be again cited, but it directs that the sureties be cited to appear at some regular term of the court to show cause why judgment shall not be rendered against them.
It is declared that “ the proceedings in such cases shall be the same as in other civil suits in said court.”
The proceeding by which the liability of the survivor and sureties is to be ultimately established is termed a “ civil suit,” which a proceeding in the probate branch of the county court, under the provisions of the constitution, is not. The proceedings are directed to be the same as in other civil suits. It becomes practically a suit on the bond of the survivor and sureties, in which they may show that no devastmii has been committed, or that the assets of the estate have been fully administered, or any other fact which will show that.no judgment ought to be rendered against them.
If the parties so desire they are entitled to have the facts which determine their liability or non-liability found by a jury (R. S., 3059-3061), for that constitutes a part of the proceeding in civil suits. This could not be had if the trial is to be in the probate branch of the court. R. S., 1803.
We are of the opinion that the statute contemplates, after the right, of a creditor holding an approved claim, to sue has been established in the probate court, that the creditor’s proceeding shall be transferred to the civil docket of the county court, in all cases falling under article 2178, R. S., when, after the sureties have been cited, such a judgment may be rendered on the bond as the facts justify; but that the probate court has no jurisdiction to render such a judgment; from which it follows that the district court, on appeal, has no power to render such -a judgment as was rendered in this case.
The district court, on hearing, should have made the same order as was made by the probate court, or should have declared that the estate had been properly administered, or that there were no assets still liable for the payment of debts, as the facts may have justified, and this was the extent of its power.
The creditors, if their right to sue was established, could then proceed in the county court as provided by the statute.
*654The fact that the survivor has married since the institution of this proceeding in the probate court does not interpose any reason why the proceeding there commenced may not on the appeal to the district court be determined.
Nor does the fact of her marriage, if it be established by the decree of the district court that the creditors have the right to sue, furnish any reason why they may not each prosecute their claims severally in the county court as provided in the statute; for the suits will be practically suits against her and the sureties on her bond in a court having jurisdiction of such civil suits under the express provisions of the statute, which in this class of cases, under section 22, article 5, of the constitution, may be considered a change of the jurisdiction of the county courts. Her husband should be made a party to such suits.
In view of the facts presented, in order to facilitate the further disposition of the case, we deem it proper to say that in ascertaining whether there has been a devastavit, or whether there are assets still on hand subject to the claims of creditors, all such property or money in lieu thereof as would have been set aside to the widow and child as exempt, or as the year’s allowance, by a probate court, had the administration been under other provision of the statute than that regulating the administration of community property by a survivor, should not now be considered as assets of the estate.
The judgment of the district court will be reversed and the cause remanded, that the district court may pass upon the only question of which it has jurisdiction.
It is so ordered.
Eeversed and remanded.
[Opinion delivered November 24, 1885.]