(dissenting). — While concurring in the judgment of affirmance in this cause, I can not give my assent to the view of a majority of my brethren, overruling the motion to dismiss the appeal. Did this ruling involve nothing more than the mere form of bringing cases of the nature of the one at bar from the district courts to this court, it would have no other significance than the settling of a mere technical question, the record under our statute being examinable in this court the same by writ of error as by appeal. The reasoning, however, by which the result is reached, —that appeal does, and writ of error does not, apply to-the case at bar, — is fraught with consequences quite important. This case originated in the probate court, and thence it went by appeal to the district court. It is a statutory proceeding for the summary disposition by the probate judge of a creditor’s claim against a decedent’s estate, as to which there is provided for the claimant an election of two remedies, — one, appeal to the district court; the other, an action in said court to recover the claim, — but for the administrator merely the right of appeal. The alleged creditor in this case elected, upon the rejection of his claim, to appeal; and this court, holding that as, by such appeal, the case went to the “district court sitting as a court of equity,” concludes that appeal, and not writ of error, is the mode to bring the same here. My dissent is therefore upon the view that the appeal from the probate court to the district court carried the .case to said court, and made it there triable as an action at law, and reviewable here only by writ of error. Sess. Laws, 1891, p. 123, sec. 5.
If the opinion of the majority of my brethren is correct, then here we find a curious legislative anomaly, not to designate it by a less respectful name. For example, if there be two creditors of an estate, a grocer and a dry goods merchant, each presents his claim to the probate judge for allowance, and both claims are rejected. The grocer appeals, and goes to- the equity side of the district court; and the dry goods merchant brings his action, and goes to the law side of the same court. The “equity” case is unique in that, though there is an adequate remedy at law, no demurrer will lie; and the law case unique in that, by the will of the plaintiff, an appeal can metamorphose it into a suit in equity, if the probate court be still in session. Pursuing this suggestion a step further, we find that the grocer gets his decree, and this court, on appeal, may set it aside, because the weight of the evidence is the other way; while the dry goods merchant, having a verdict and judgment, overcomes plaintiff in error, because there is slight evidence to support the verdict. A further inconsistency exists in the fact that the creditor may elect for his demand to be tried by a court or a jury; while the administrator, having merely one remedy, — that of appeal, — is deprived of a jury. The vice found in the opinion of my brethren lies, I respectfully insist, in the fact that too much regard is paid to the supposed equitable nature of the proceeding in the probate court, and too little to the nature of the case itself. In Ferris v. Higley, 20 Wall. 375, it was decided that a territorial legislature could not confer jurisdiction in chancery and at common law on probate courts. Such courts are as devoid of chancery as of common law jurisdiction, and can be vested by our legislature with neither. As I understand the view of my brethren, it is held that, though a claim for indebtedness may be an action at law in the district court, the same claim is in the nature of a proceeding in equity, if brought in the probate court, because it is in the latter court part and parcel of' the general administration of an estate, which is one of the recognized heads of equity jurisdiction. I must confess my inability to understand how it is that the probate judge, in summarily disposing of a creditor’s claim against an estate, takes any more or any less part in the general administration of an estate than do a judge and jury if an action at law is brought on the claim in the district court. The proceeding is not in ány way the settlement of an estate, but merely a statutory mode of adjudicating claims, with no more resemblance to a suit in equity than has a proceeding by attachment. By comparing the act of 1889 with section 562 of the Compiled Laws of New Mexico of 1884, it will be seen that demands of creditors against estates are omitted from those matters in the administration of estates recognized as being equitable in their nature, and a method, purely statutory in character, is provided for their disposition in another portion of the act. Acts, 1889, secs. 27-30, 48. It seems to me that the general proposition that courts of equity in this country having succeeded to the jurisdiction vested in the spiritual courts of England makes everything done in the probate courts of an equitable character, and all actions therein proceedings in the nature of equity, is a non sequitur. The lack of common law and chancery powers merely prevents the probate court from disposing of matters according to their nature. This inherent defect in the constitution of that court is of no further concern when the appellant comes into a jurisdiction clothed with the power to determine controversies in the appropriate methods their natures demand, especially when the trial is to be de novo, as our appeal statute provides.
In Lewis v. Baca, 5 N. M. 296, this court, by a unanimous opinion, held that where a claim of the nature we are here considering comes on appeal to the district court, to be tried de novo, it is tried as an action at law, because of thé fact that in its nature it has no relation to a suit in equity. This has been followed by the case of Gildersleeve v. Atkinson, 6 N. M. 255, which was tried as an action at law in the lower court, and brought here by writ of error, then conceded by all to apply only to a case at law, though appeals were allowed at that time both in suits in equity and actions at law. As early as the year 1859, appeals in cases of this nature were triable by the jury as actions at law, as shown by the record in Spiegelberg v. Mink, 1 N. M. 308. In Chaves v. Perea, 3 N. M. (Gil.) 93, an obiter dictum is found to the effect that an appeal such as this would go “to the chancery side of the district court.77 That is the entire statement, and it is directly opposed by tbe authoritative holding of this court in Lewis v. Baca, supra, and the other cases cited. In the case at bar the learned judge in the court below said: “The claim, as filed, amounts to, and should be considered as, a declaration in assumpsit,”— and, when he so considers it, this court holds there has been a trial in a “court of equity.” The “chancellor,” following, however, his view, entered what is in form a judgment in an action at law, a jury being waived; and this court says, in effect, that it is a decree in equity. I think it is unfortunate that in this case, where all agree that the decision of the court below should be affirmed on the merits, the practice as to trying such appeals in the district court must be overthrown just as it was about settled, and that it is held that a case of no equitable character whatever may be tried in an equity court, if plaintiff so elects. It seems far more satisfactory and consistent that it should be held that cases on appeal from the probate court, which is a court as much devoid of chancery as of common law jurisdiction, should be tried in the district court as actions at law if their nature is such, and as suits in equity if they are of that character. In further support of my view, I cite Johnston v. Shofner, 31 Pac. Rep. 254; Wilkes v. Cornelius, 28 Pac. Rep. 135.
My concurrence with the result arrived at on the merits of the appeal, I base on the finding of the' court below that no sufficient corroboration, as required by section 2082 of the Compiled Laws of New Mexico, was made.
Laughlin, J., concurs in this dissent.