The appellant contends that in a complaint, the whole evidence must be set out in haec verba, or it is demurrable. The complaint in this case sets out the facts that the claim was presented to the administrator and the Judge according to law, and allowed. It was not deemed necessary to file copies of all the proceedings; if they ran irregular, they could be objected to on the trial, and ruled out like all other evidence; so with respect to the fourth ground of demurrer. The appellant states that the main ground of action is the Judge's order, and that it ought to have been incorporated verbatim et literatim, in the complaint.
Now, it is not true that the Judge's order is the " main ground of complaint." It is no ground of complaint at all. The ground of complaint is the malfeasance and embezzlement by the administrator of the funds of the deceased. The order of the Judge was a mere direction as to whom he should pay over the assets.
The allegation in the complaint is fully sufficient to identify the order of the Court.
The rule of law respecting pleading is that facts, and not testimony, must be spread on the record. See Gould and Chitty's Pleadings, passim; also decisions of this Court.
The decree of the Probate Court, being a Court of competent jurisdiction, over the subject-matter and the persons, would be final, unless set aside on appeal. This Court, in the case of Warner v. Wilson (4 Cal. 313), has fully adjudicated this point.
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.
OPINION
MURRAY, Judge
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 are 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 Warner v. Wilson (4 Cal. 313), so much of the opinion as related to the introduction of the record of the Probate Court was abiter, 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.