
    T. J. MOORE v. HENRY KOUBLY.
    Clerk’s Certificate. — The certificate of the clerk of the district court that the “judgment has been duly appealed” will not cure any defects in the record. It is for the court to determine that question from the record.
    Appearance — Waiver.—A party appearing generally, in a suit or proceeding, thereby cures whatever defects may exist in the original process to bring him into court.
    Idem. — A voluntary appearance in an action is as effectual for any purpose as due service of process.
    Idem — Notice oe Appeal.. — A party appearing generally in a ease on appeal in this court, thereby waives all informalities in the notice of such appeal, or want of service of the same.
    Jurisdiction. — Probate Courts. — The act of the legislature conferring appellate jurisdiction upon the probate courts in civil cases, is in conflict with the organic act.
    Appeal from tbe first district, Nez Perce county.
    
      A, Heed, for tbe appellant.
    Appellant seeks to bave tbe court review all intermediate orders and judgments, and to bave tbe order and judgment of the district court reversed, and to have the judgment of tbe justice of the peace affirmed with costs. (Stats., p. 141, secs. 292 and 293.)
    
      Gurtis & George, for the respondent.
    There is no evidence of the service upon respondent of any notice whatever of this appeal. The record shows no judgment or order of the court below in the case. The appeal from the probate court to the district court wras without authority of law, and conferred no jurisdiction upon that court in the case, either original or appellate. And the district court very properly decided nothing. . The most that court could have done was to have dismissed the appeal.
    This court can not go behind the district court to review any order or judgment made by any inferior court. This court can only act upon the proceedings, judgment, or orders of the district court from which the appeal was brought here, whether the same be intermediate or not. Nor can this court affirm the judgment of the justice of the peace, as no appeal lies from that court to this. And no remittitur or mandate could be sent there. If the inferior court erred, the district court was open to correct them; and this court to correct the errors of the district court. In this case the district court committed no error by having done nothing.
    All the proceedings in all the courts below haye been and are caram non judice and void, and this appeal is the same. The justice had no jurisdiction over the subject-matter; the probate court, under the organic act, had no appellate civil jurisdiction; the district court had no jurisdiction on appeal from a justice’s court through a probate court; this court has no jurisdiction whatever to determine any of the rights of the parties, because no such rights were submitted for the determination of the district court, and it determined none — not even awarding costs.
   CüMMiNS, J.,

delivered the opinion of the court,

MoBbide, C. J., and Kelly, J., concurring.

This was an action in replevin, originally commenced and tried in the justice’s court for the recovery of specific personal property, or its value, which was determined in favor of tbe plaintiff. From that court tbe defendant appealed to tbe probate court of Nez Perce county. When tbe cause was called up for bearing in tbe probate court, on tbe fifth of February, 1864, plaintiff, by bis counsel, moved tbe court to dismiss tbe cause, upon tbe ground that tbe probate court did not possess, nor could it exercise, appellate jurisdiction. This motion was allowed by tbe court, and tbe cause accordingly dismissed. From tbis judgment, or order of dismissal, tbe defendant appealed to tbe district court of tbe first judicial district. On tbe first day of April, 1864, tbe cause being called up for bearing in tbe district court, that court reversed tbe judgment of tbe probate court in sustaining tbe motion, bolding that tbe probate court was properly invested with and could exercise appellate jurisdiction, and bence erred in dismissing tbe cause. But wbetber tbe case was remanded to tbe probate court, as would bave been proper under tbis ruling, for further or for any proceedings, does not clearly appear from tbe record before us.

From tbe judgment of tbe district court disallowing tbe motion filed in tbe probate court, and declaring that that court could legally exercise appellate jurisdiction, tbe plaintiff appeals to tbis court. Upon tbis state of facts, tbe respondent files a motion to dismiss tbe appeal upon tbe grounds: -

1. That there is no evidence in tbe record or transcript from tbe court below of service of tbe notice of appeal on tbe respondent.

2. There is no judgment of tbe court below (meaning tbe justice’s court) from which an appeal will lie.

As to tbe first point raised by tbis motion, it is true tbe record does not show or contain those facts necessary to constitute legal service of a notice. A certified copy of tbe notice of appeal is set out in tbe transcript, together with a certificate of tbe clerk that tbe appeal was “duly taken to tbe supreme court by the filing and service of tbe proper notice,” etc. Tbe rule is well understood that it is for tbe court and not for tbe clerk to determine wbetber an appeal has been properly taken. It is tbe duty only of tbe clerk to certify to tbe facts as they exist, in relation to tbe notice and its service; and it is tbe province of tbe court to determine whether these facts constituted legal service — such service as will give this court jurisdiction of tbe respondent. If they do not, the certificate of tbe clerk that a “judgment has been duly appealed,” will not obviate tbe defect in tbe record.

Though it does not affirmatively appear on tbe papers in this court that due service of tbe notice of appeal was bad upon tbe respondent, yet we do not deem tbe objection here well taken. Tbe object to be attained by a notice of appeal and service of tbe same, is to notify tbe respondent that an appeal has been taken, and of tbe court in which be is to appear to oppose tbe reversal or modification of tbe judgment or order by which tbe appellant alleges be has been aggrieved.

It is a well-established rule of law, upon principle as well as authority, that if a party appear in a suit or proceeding, be thereby cures or waives whatever defects may exist in tbe original process itself necessary to bring a party into court, or whatever irregularity may have occurred in tbe service of such process. A voluntary appearance in a suit is as effectual for any purpose as due service of process. Tbe supreme court of tbe United States, in tbe case of The United States v. Gurry et al., say that “tbe appearance of tbe defendant in error, by attorney, in tbe appellate court, superseded tbe necessity of a citation; and after such appearance no advantage can be taken of tbe want of a citation, even though tbe attorney, for special reasons, should be allowed to withdraw bis name.” (See United States v. Curry et al., 6 How. 106.) It is proper here to remark that tbe citation there referred to is nothing more than a formal notice to tbe defendant in error, and answers to our notice of appeal. In the case before us, tbe respondent, by bis attorney, has appeared and filed a motion, as before stated, not only raising tbe question of tbe legal sufficiency of tbe service of tbe notice of appeal, so far as tbe facts contained in tbe record are concerned, but also raising the question of tbe legal sufficiency of tbe judgment in tbe justice’s court, as shown by the transcript, to sustain an appeal for any purpose. From this it can not be seriously contended that the respondent has not appeared generally to the case. This being true, the object and purpose of the* notice of appeal has been as fully and effectually accomplished as if the service of the same had been made upon the respondent.

A respondent ought not to be permitted to come into an appellate court and raise objections going to the substantial merits of the case, on a motion to dismiss the appeal, and at the same time contend that he is not in court; that the court has not jurisdiction of the matter in controversy, by reason of a want of due service of the process or notice necessary to bring the respondent there. A party, therefore, appearing generally in a case on appeal in this court, thereby waives all informalities in the notice of such appeal, or want of service of the same.

It will be unnecessary to pass upon the second objection raised by respondent’s motion, as it will be proper first to examine into and pass upon the question of the appellate jurisdiction of the probate court involved in the record, which the court below determined in the affirmative on a motion from that court. The determination of this question will dispose of the case in this court.

This cause was instituted in the justice’s court on the seventh day of November, 1868, and by agreement of parties entered of record and heard on the same day. The defendant filed his notice of appeal on the same day, and procured service of the same upon the plaintiff on the ninth, as appears from the sheriff’s return on the same. The appeal, as the record shows, was taken to the probate court before the convening of the first session of the legislative assembly— hence, prior to the enactment of a code of procedure, civil or criminal, for the territory. It is, therefore, presumed that the parties were governed by the statutes of Washington territory, in force in Nez Perce and other counties segregated from that territory by the act of congress of March 3, 1863. From an examination of these statutes, it will be found that they did authorize an appeal to the probate court from tbe justice of tbe peace. Tbe question tben arises, Was it competent for tbe legislature to invest these courts with appellate jurisdiction? Tbe ninth section of the act of congress of March 2, 1853, conferring judicial power upon tbe territory of Washington, contains precisely tbe same language found in tbe corresponding section of tbe act of March 3, 1863, conferring judicial power upon this territory. It is there declared that tbe “judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and justices of tbe peace.” And, further, that “tbe jurisdiction herein provided for, both appellate and original, and that of tbe probate courts and justices of tbe peace, shall be as limited by law.” Sufficient is here quoted from that act to indicate generally tbe distribution of tbe judicial power among tbe several courts created thereby, and tbe character and extent of tbe jurisdiction with which those inferior courts are invested, as well as tbe authority under which the legislature attempted to clothe the probate courts with appellate jurisdiction. In other words, a complete judiciary system was by that act established, with the general nature and extent of the jurisdiction conferred upon each branch thereof, either declared by the express terms of the act itself or by the terms by which those courts are designated. To illustrate our meaning more fully: Justices of the peace are public officers, well known to our jurisprudence, invested with judicial powers for the purposes of preventing breaches of the peace, and bringing to punishment those who have violated the law, and in many of the states and territories are possessed of limited jurisdiction in civil matters. The district courts are tribunals of general jurisdiction, both common law and chancery, and the supreme court possesses almost exclusively appellate power. These terms import too clearly the nature and powers of these courts to afford ground for any doubt as to their jurisdiction. And yet the only express limitation of the jurisdiction of the court of justice of the peace contained in the organic act, unless it be found in the name of the court itself, is as to civil business, where “the title or boundaries of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars.”

The probate courts established by that act are also tribunals of limited jurisdiction. They exist in some form or other in every state and territory composing our government, and the general nature and powers of the same are as well understood and as clearly defined as are those of other courts above enumerated. The very names or terms by which these courts are designated have a clearly defined and well-known signification or meaning in our jurisprudence. The mere mention of the title of the court conveys to our minds clear preceptions of its power and jurisdiction. The probate courts, it is well understood, ex vi termini, have been established for the proof of wills, for the general management and final settlement of decedents’ estates, for the general supervision of guardians and their wards, and all other matters legitimately pertaining to this class of business. The nature and scope of authority, here indicated as possessed by the probate court, are as well understood by the term designating that court as are either of the other courts known to our judiciary system. And yet no one would contend for a moment that because the legislature are not inhibited by express terms-, therefore they may confer, for instance, chancery powers upon justices’ courts. Still the only plausible argument which is or can be urged to sustain the proposition that the legislature may confer upon or invest the probate courts with civil or appellate jurisdiction, is founded upon the absence of any express prohibition, in the organic act establishing these courts, against the granting of such power.

The conclusion from the foregoing is, then, but reasonable and proper, that when congress used the terms by which they designated the several courts they established in these territories, and in distributing the power among them, they intended to and did use those terms by which these courts are denominated with reference to their well-known and uniformly accepted definition, and that they intended to confer upon and invest these courts respectively with such jurisdiction and power only as legitimately and properly belongs to them, and as indicated by tbeir several titles. If, then, congress, when they used the term “probate court,” intended thereby to establish a court for the proof of wills, etc., and certainly this is the only reasonable and legitimate inference to be drawn from the language of the act itself, then the words “as limited bylaw” occurring in the organic act, were evidently intended to restrict those courts of inferior jurisdiction to the exercise of that power or authority only wdiich their titles import. Hence, the act of the legislature, giving appellate jurisdiction to these probate courts, was in contravention of the provisions of the act of congress, from which all legislative as well as judicial power is derived; and, therefore, the judgment'of the court below, reversing the judgment or order of the probate court dismissing the appeal for want of jurisdiction, was erroneous.

The judgment of the district court is reversed, and the cause is remanded, with instructions that the appeal in that court be dismissed.  