
    *Robert McCurdy and others v. William Legally and others, Administrators of Henry Terry
    Where proceedings have been appealed from the commissioner of insolvency, appointed under section 201 of the “ act to provide for the settlement of the estates of deceased persons,” to the court of common pleas, the Supreme Court can not take jurisdiction as an appellate tribunal.
    A cause so appealed to the common pleas is not a proceeding in chancery coming within the provisions of section 52 of the act directing the mode of proceedings in chancery.
    This case was reserved for decision in this court in Huron county.
    It appears from the papers, files, etc., that at the May term of the Huron common pleas, a. d. 1839, the complainants in the suit obtained a decree for the foreclosure of a mortgage against Henry W. JenkiDS, in the sum of $10,636.35 debt, with costs. That Jenkins appealed that cause to the Supreme Court, by filing the appeal bond set out in the bill, in the penal-sum of $22,000, with John B. Wilbor, Josiah Tracy, and Henry Terry, as sureties. That a decree was obtained in the Supreme Court, at its August term, a. d. 1840, finding due to the complainants $4,972.35, and ordering a sale of the mortgaged premises unless the decree should be paid within the time limited. That the mortgaged premises were sold, under a decretal order issued upon the decree, July 12, 1842, for $3,240. That on May 13, 1843, the complainants procured a writ of fieri facias to be issued upon the decree, “ to make the balance due,” which was returned, “ no goods,” etc. That Jenkins, at that time, was insolvent. That at the June term of the Huron common pleas, A. D. 1843, the complainants commenced suit on the appeal bond, against Jenkins, Wilbor, Tracy, and Terry, upon all of whom process was served; and that at the following October term, judgment for the penalty of the bond was obtained against Jenkins, Wilbor, *and Tracy only, with leave to take out execution for $2,679.60 and costs, Terry having deceased prior to the sitting of the court. That Wilbor and Tracy have paid about $1,200 on the judgment, and are unable to pay more. That Terry died in September, 1843, and the defendants, Legally, and Roxana Terry, are his administrators. That in the month of January, 1845, complainants presented their aforesaid claim to said administrators for allowance and payment; and on January 29, 1845, presented and proved it before the commissioners of insolvency on said Terry’s estate, and the same was disallowed by said commissioners, from whose decision complainants appealed. The substance and prayer of the bill are, that the defendants may be decreed to pay the claim out of the assets of the estate, and for general relief.
    The defendants, in the common pleas, demurred generally to the bill, and their demurrer was sustained, and the complainants then appealed to the Supreme Court.
    At the August term, 1845, the case was heard and dismissed, on the defendant’s motion to dismiss the appeal; alleging that the court of common pleas had not original jurisdiction, and that the suit relates to matters of probate and intestacy, and as such, was not within the jurisdiction-of the court. A petition for rehearing on this order was then presented and reserved, together with this whole case, for decision in this court.
    
      Andrews & Lane, for plaintiffs:
    The case presents two questions: 1. Whether the suit be appealable ; 2. Upon the merits.
    1. Is the suit appealable? This depends upon a question of practice, arising under our present system of administration.
    The plaintiff obtained a decree for the foreclosure of a mortgage against H. W. Jenkins, who appealed to the Supreme *Court. The appeal bond was given by Jenkins, Tracy, Wilbor, and Terry. Terry died. The plaintiff recovered a judgment on the bond against Jenkins, Tracy, and Wilbor, who are all insolvent. The plaintiff’s remedy against the estate of Terry is plain and full in equity. It is lost at law, unless the statute gives a scire facias.
    
    In the settlement of Terry’s estate, commissioners were appointed, under section 201 of the statute, page 376. This claim was presented to them and rejected. Plaintiff appealed to the common pleas. Sec. 207. The common pleas required that the claim should be presented in the juridical form, by pleadings, and the plaintiff filed his bill in chancery. The common pleas, on demurrer, dismissed the bill, from which dismissal the plaintiff has appealed, and the defendant moves to dismiss.
    The question then is, in what manner shall this court, as the court of the last resort, exercise its revising jurisdiction over the common pleas, admitting or rejecting a demand against a decedent’s estate, which may be pursued in chancery? That this supei’visory power of the Supreme Court subsists in some form, is plain; for it is reckoned that the whole property of the country passes through the course of administration as often in once in thirty years; and there is not the slightest intimation in the statutes, and it never could have been intended, that the common pleas should hold exclusive jurisdiction over this lai’ge department of litigation, or that the Supreme Court should abandon its duty, as the ultimate tribunal of correcting errors, and preserving uniform rules of justice. The mode of interposition, in all questions on the law side of the court, is .plain; the common pleas very properly require the claim to assume a juridical form, the form of a suit; the case is regularly tried by jury, and is followed by a regular judgment, which may be reviewed by the ordinary writ of error, and the power of the superior tribunal is thus preserved perfect and effectual, in the ordinary judicial forms. But a writ of error will not reach cases in chancery.
    
      *Will it be said that we must bring a bill of review?
    We admit we may; but how crooked this remedy is. We may file our bill in the same court, and then we may appeal that bill of review which is an original suit, and present the question thus ; but must we? Is it best to prescribe a remedy which can only be reached “per ambages” (“by hook-em-snivey ”), with much toil and expense, instead of the direct and simple course of appeal?
    But, say the defendants, the common pleas have the case by appeal, which is governed by the same rules as appeals from justices, and admits no second appeal. The statute will bear, but it does not require, such a construction. It admits the following: That suits at law, under $100, are reviewable by writ of error only; but that all the suits of sufficient magnitude to admit original jurisdiction in the common pleas, are to be regulated by the rules governing such suits. Or, it admits a review in all cases of law, by error, and all cases in chancery, by appeal or review-We submit to the court which is the preferable course, and only add, that if we are driven to a bill of review, and an appeal of that, it is a path unnecessarily crooked.
    2. If the court sustain this appeal, our rights qn the merits appear to us plain.
    Tn May, 1839, plaintiffs procured their decree of foreclosure. Jenkins, Tracy, Wilbor, and Terry signed the appeal bond, whose condition was “to pay the full amount of condemnation money,” etc., “ in case decree be entered herein in favor of appellees.”
    The Supreme Court, after confirming the master’s report, “ decree that the defendant, within thirty days next,” etc., “pay the aforesaid sum'of $4,972.35, being the amount,” etc., “with costs of suit,” and in default, a decretal order issue, etc., and that special mandate issue, to carry this decree into execution.
    In 1842, premises sold under decretal order.
    1843, fi. fa. against Jenkins from C. P., to make unpaid balance.
    *1843, October. Plaintiff recovered judgment on.the appeal bond, against Jenkins, Tracy, and Wilbor, for unpaid balance, Terry being dead.
    Jenkins, Tracy, and Wilbor are insolvent.
    TJpon these facts, we assert, we have a lawful claim against Terry’s estate for the unpaid balance. The remedy by bill is entirely open and ample. A creditor may pursue his joint debtor’s ostate in equity when the surviving debtor is insolvent, Stat. 355, sec. 72; Story’s Eq. 676, sec. 1.
    This claim must be presented to the commissioners of Terry’s estate, it having been represented insolvent; all other remedies are cut off. Stat. 380, sec. 224.
    The main defense is, that the decree creates no debt; that it is in rem only. If so, the property of Jenkins only is bound.
    But it is not so. It not only finds and establishes a debt against Jenkins, the original debtor, but it condemns him to pay it with costs. It is, in terms, a decree to pay the debt and costs. The same words which give us the costs, give us the debt; the same execution can collect both. If we can not make the debt, we can not make the costs; the obligors of the bond did not bind themselves to pay the costs, unless they are bound to pay the debt.
    But this whole matter is explicitly settled by 13 Ohio, 422. That case decides that where a decree only finds a debt due, it creates no new or personal obligation ; but a decree containing an order to pay creates a debt, and authorizes an execution to collect it. Of course, if Jenkins was condemned to pay and subjected to execution to collect, his bail are, liable,
    Boalt & Wooster, for defendants:
    
      Motion to Dismiss the Appeal. — The first ground for the dismissal of the appeal, as stated in the motion, is, that this is not a cause for which the common pleas had original *jurisdietion; and the second, that it is, as presented to the court, a matter of probate jurisdiction, and as such, appertains exclusively to the common pleas.
    1. The original papers filed in this cause disclose the facts, that the estate of Henry Terry was insolvent; that commissioners of-insolvency were appointed under the statute to examine, audit, and allow claims against the estate; that this claim, now sought to be enforced, was presented to the commissioners for allowance by them, and rejected, and an appeal taken by the complainants to the common pleas, and afterward appealed by them to this court. Vide original transcript, bond to the common pleas, and certificate of the clerk;
    “The Supreme Court shall have appellate jurisdiction from the court of common pleas, in all cases in which the court of common pleas has original jurisdiction.” See act to organize judicial courts, Swan’s Stat. 222, sec. 2.
    It was insisted on the circuit that the right to an appeal in this case is secured to the complainants under the statute “ directing the mode of proceeding in chancery.” Swan’s Stat. 713, sec. 52. It is there enacted that “any person may appeal to the Supreme Court from any final sentence or decree pronounced and made in any cause or suit in chancery, in the court of common pleas, on giving notice,” etc, Admitting, for the sake of argument, that there is an apparent or substantial inconsistency between the provisions of the statute last cited, and section 2 of the act “organizing the judicial courts” — that the one, on a just, construction of its terms, contemplates the right to appeal in all cases in chancery, and that the other limits the right to that class of cases in which the common pleas has original jurisdiction— which of the two must yield? The act “'organizing the judicial courts ” holds much the same relation to the acts regulating their practice, or mode of proceeding, that the .constitution does to the former act. The former act is the fundamental or organic law of the latter. The one creates the courts, grants and defines their powers, and the other ^regulates and directs the mode of carrying those powers into effect. If, then, this is so, in case of inconsistency in the two acts, especially as to a question of power, is it not obvious that the subsidiary should yield to the primary?
    But again, it was argued, on the circuit, that the commissioners of insolvency do not constitute that kind of tribunal that should be regarded as having jurisdiction of the matters appertaining to their appointment in such sense as to make this class of cases an exception to the original jurisdiction of the common pleas, as contemplated in the act organizing judicial courts. To this objection, we answer, the constitution of Ohio provides that “the court of common pleas of each county shall have jurisdiction of all probate and testamentary matters, granting administration,” etc. Swan’s Stat. 29, art. 3, sec. 5.
    By “ probate and testamentary matters ” are, of course, intended such matters as by the English law comb before the ecclesiastical courts, and in our sister states, before the courts of probate, orphans’ courts, etc.; matters that elsewhere constitute a separate and independent branch of jurisprudence. It is sufficient to remark here that these are not matters of “common law,” or “ in chancery,” in respect to which an appellate jurisdiction is contemplated under the constitution.
    The fact that in one section of the constitution an appellate jurisdiction at “common law and in chancery” is given to the Supreme Court, and that in another section, original jurisdiction, without appellate powers, is given to the common pleas in “probate and testamentary matters,” is not only evidence that in respect to the latter, appellate powers were no1¿ contemplated, but is also evidence that, although matters of probate, etc., in common with chancery and common-law powers, were vested in the common pleas, the terms “common law” and “chancery” were not designed to embrace or to be confounded with “ probate and testamentary matters.”
    The acts “ organizing the judicial courts,” and the “ act to provide for the settlement of estates,” are in strict accordance *with this view of the constitution. The former act provides that the common pleas “ shall have power to take the proof of wills, grant letters testamentary thereon, and to grant letters of administration upon intestate estates, and to hear and determine all causes of a probate and testamentary nature,” p. 222, sec. 4. The right of appeal to the Supremo Court is nowhere mentioned in either of the above acts, in reference to this class of cases; and as “ the practice of removing causes by appeal, for a second trial, is created by statutory provision,” it follows that when the statute is silent the right fails. In the matter of Chapman’s will, 6 Ohio, 148.
    In Street v. Francis, the court say: “ It [the right of appeal] has never been considered as extended to cases in which a summary jurisdiction has been granted to the court of common pleas by particular statutes. In such cases we never sustain an appeal, unless it has been allowed by the statute that creates the jurisdiction.” 3 Ohio, 277. See also Hoy v. Hites, 11 Ohio, 254; Doane v. Fleming, Wright, 158; Mygatt v. Ingham, Wright, 176.
    But it is claimed that this suit is a proceeding in chancery, and for that reason can not come within the rule denying appeals to the Supreme Court in probate matters. It is true, that it has now assumed the form of a bill in chancery, but its specific or distinctive nature as a chancery or probate proceeding, is to be determined by the character impressed upon it at its inception. Had it been presented in its present shape to the commissioners of insolvency, with all the formalities of a bill in chancery, it would, in our view, have made no difference as to its character. The statute for the settlement of insolvent estates is silent as to the form in which the claims of creditors shall be presented to the commissioners for allowance, We can see, therefore, no objection to the original evidence of the indebtedness being so presented without further formality, or to a bill of particulars of it, as before magistrates, orto their being presented in the form of declarations at law, or bills in chancery in the proper cases. The proof must be the same, whatever the mode.
    *So much for the motion to dismiss.
    In support of the demurrer, we submit the following considerations :
    1. That the bill is insufficient for want of parties. It will be readily seen, upon an inspection of the bill, that Jenkins, Wilbor, and Tracy are necessary parties to this proceeding, and that a decree can not be made, properly and equitably disposing of the matters set forth, unless they shall be made parties to the proceedings. Of the propriety and necessity of their being so'made parties, the complainants were fully aware at the time of filing their bill, and accordingly have named them all as defendants, but have hitherto neglected to issue process against them, or in any other mode to affect their appearance to the suit.
    2. That the complainants in the case made in their bill, men with the proper parties, have no remedy either at law or in chancery.
    
    The case of Hamilton v. Talmadge, 13 Ohio, 427, is in point; though that case, in our view, was a stronger one for the complainants than this is, for the reason that, in the former,personal property, as well as real estate, were ordered by the decree to be sold and the personalty so condemned, could not be found by the officer holding the process for its sale; which fact appears upon the return made by him. In both cases, that of Hamilton v. Talmadge et al., as well as that of McCurdy & Dart v. Jenkins, a writ oí fieri facias issued after the sale of the real estate on thé decretal order. Butin the ease of Hamilton v. Talmadge et al.., the fieri facias rightly issued, it being the proper process for the sale of the personal property condemned. On the contrary, in McCurdy & Dart V. Jenkins, the fieri facias was issued irregularly and tortiously,. without any authority for it in the original decree, or by any sub-. sequent order of court, and would have been at once set aside on motion. See also Buell v. Cross, 4 Ohio, 327.
    3. That if any cause; of action exists, the remedy of the complainants is at law, and not in chancery.
    
    *In a case like the present, where a surety died pending a suit at law against him, or after judgment, the creditor formerly had no remedy against the personal representatives of the surety, either at common law or in chancery. The case of the Zanesville Manuf. Co. v. Granger, 7 Ohio, 165, pt. 1, covers the entire ground of this objection. The points decided in that case are stated in Wilcox’s Dig. Ohio R. 451, as follows: “At common law, it seems that if one of several judgment debtors died, there was no way to make the representatives of the deceased a party to the judgment. And if the deceased were a surety, a court of equity could not supply the defect in the law. But, under our statute, a scire facias lies jointly against the representatives of the deceased and the survivors; and that, too, though the deceased was a surety." It will be seen, by-reference to the •case itself, that Judge Collet, in giving the decision of the court, ■applies its doctrines, as well to suits pending, as to judgments rendered. See also 1 Chit. 57; Harrison v. Field, 2 Wash. 136; 3 Ves. Jr., 399, in notes.
    To remedy this defect in the law as it before stood, the statute of Ohio provides that the personal representatives of the decedent may be made parties to the judgment, after it shall have been rendered in cases where one or two, or more defendants die pending the action. Swan’s Stat. 608, 609, secs. 69, 70. The process prescribed for this purpose is the writ of scire facias, to be served and returned in the same manner as a summons. A similar remedy is also provided by statute, in cases where the death happens after judgment. If, then, the complainants, in the case made, have any legal remedy, the mode of proceeding to enforce it was plain, specific, and exclusive, and, we may add, full and adequate.
    But, it is argued by the complainants, that the appropriate remedy in this case, is in chancery, for the reason that it is a proceeding against administrators, the nature of whose office constitutes them .trustees of the creditors. It is, of course, conceded that the assets of an estate, whether insolvent or otherwise, *is a trust in the hands of the personal representative for the payment of debts. But it does not follow that, because it is a trust, any person who claims to be a creditor, can go into chancery for the purpose of litigating the question, whether he is, or is not, a creditor. If the rule is as broad and comprehensive as has been claimed, any one, having a demand against an estate, whether equitable or not, or whether existing in judgment, bond, promissory note, or otherwise, might resort to chancery, in the first instance, to establish his right to recover. But we do not understand that such latitude has ever been given to chancery jurisdiction; but that, in order to give such jurisdiction, in suits against administrators, the case must disclose some element of equity jurisprudence, other than the fact that the assets constitute a trust.
    It has been decided that “a creditor, before judgment, may file a bill to compel the distribution of a decedent's estate.” Grosvenor v. Austin et al., 6 Ohio, 112.
    This is, as we think, as far as this or any other court has gone in matters of this sort; but, before he can be permitted to come into a court of chancery to “compel distribution,” his character as creditor must be first established or admitted. Piatt v. St. Clair’s Heirs, 6 Ohio, 233. In the case of McKay v. Green, 3 Johns. Ch. 56, Chancellor Kent, in giving the opinion of the court, says:
    “ The bill is not framed for an account of assets, or so as to entitle the plaintiff to proceed in this court as a creditor. He can only come here for an account and discovery of assets, and on the ground of a trust in the executor or administrator to pay debts. 1 doubt whether a creditor ought to come into this court, in an ordinary case, and without some special cause, to collect his debt from an executor or administrator. It would seem not to be enough to state that he is a simple contract creditor, for this would invite all suits against executors into this court. The ordinary and proper, as well as the cheaper and easier remedy, is at law. The resort here is only in special cases.”
   *Birchard, J.

The first question to be-disposed of is the motion to dismiss the appeal, for if that be with the respondents, it is manifest that we should not look to the other questions presented by the papers.

In general, there is very little difficulty in ascertaining the extent and manner of acquiring jurisdiction by the several courts of this state, inasmuch as they are prescribed by positive enactments. It sometimes happens that doubts arise, growing out of hasty legislation or want of care in preparing bills, without reference to the provisions of prior laws.

Section 2 of the act to organize the judicial courts, confers upon ■the Supreme Court appellate jurisdiction from the court of common pleas, in all civil cases in which the court of common pleas has original jurisdiction.

If we depend upon this position alone, it will hardly be contended by any one that the court entertain the case at bar; for, upon examining into the jurisdiction which the court of common pleas had of the case, it will be found to be appellate, not original. Section 207 of the act to provide for the settlement of the estates of deceased persons (Swan, 377) provides, “ that any person whose claim shall be disallowed by any of the commissioners, and the executor who shall be dissatisfied with the allowance of any claim, may appeal from their decision to the court of common pleas, in like manner as such parties may appeal from the judgment of a justice of the peace, and the same proceedings shall be had in the court of common pleas upon such appeal, and upon the appeal bond given by the creditor, as is, or may be, directed by law upon appeals from a justice,” etc.

It was in pursuance of the provisions of this section, that the court of common pleas acquired its jurisdiction. The cause came there on appeal from the “commissioners of insolvency.” It was not a proceeding originally instituted in that court, and the statute, by virtue of which it was there at all, prescribes the manner of the further proceedings in the case. *They were to be the same proceedings directed by law on appeals from justices of tho peace.

It is not pretended that a suit appealed from a justice to the common pleas can be taken from that court into the Supreme Court by appeal. And although it is admitted that this statute will bear a construction forbidding the further appeal in this case, yet it is contended that it does not require it, and.wül admit of a different one, to wit, that suits at law under $100 are reviewable by writ of error only, but that the suits of sufficient magnitude to admit of original jurisdiction in the common pleas, are to bo regulated by the rules governing such suit; or it admits a review of all eases of law by error, and of all cases in chancery, by appeal or bill of review. It is difficult for us to see how this proposition can be maintained. The reasoning that will support it is not given in the argument of counsel, and we have not the ingenuity to discover it. It is true that the jurisdiction of a justice of the peace is limited to sums of $100, but was it the intention of the legislature to so limit the action of the commissioners of insolvency under the statute? Certainly not. They ai’e to “receive and examine all claims of creditors against the estate of the deceased.” The language is comprehensive and unambiguous. It admits of no doubt. “All claims of creditors ” comprehends claims of every description, whether large or small. Indeed, the object of the commission would be defeated by the construction suggested, in all cases except where each debt against the estate shall be less than $100, for upon the presentation of the report no distribution could bo made until all the large as well as small claims had been ascertained. Again, it is contended that this is a proceeding in chancery, and that an appeal^ is allowed by section 52 of the act regulating the practice in chancery. Swan, 713. How is this? The form of the pleading demurred to bears a resemblance to a bill in chancery, and the author has so christened it. • For purposes of identity it may be well enough to adopt the name given by him to his own production, yet for the purpose of settling *tbe merits of the defendants’, motion, it is proper to look at the thing itself, to dissect -it, and see what it is in substance. Now, the suit was begun by filing a bond executed by the defendants’ intestate) with a demand for its allowance by the commissioners of insolvents, as a just debt against the estate, in order that plaintiffs might receive their just distributive share of the assets. It was a proper subject for investigation at law — was rejected and appealed to the common pleas, and when first in that court it was a suit at law upon a bond. . By the death of Terry, after service, the original suit as to him had failed, but as to his co-obligors, had been prosecuted to final judgment and execution. The statutes prescribed a way of making Terry’s representatives a party to that judgment — not, however, the statute regulating proceedings in chancery, nor section 189 of the statute providing for the settlement of estates of deceased persons. The whole object of the suit, at its inception, as well as at this time, is to establish the fact that the bond is a just claim against the estate of Terry. At first, it was a proceeding at law, and if it is not that now, it is something which the law does not define. No subpoena has ever issued, and no party has ever appealed to waive process and become defendants in chancery. True, a part of the persons named as defendants were in court, but they were there as defendants to a suit which came by appeal, and was to bo proceeded in as if it had been appealed from the judgment of a justice of the peace — that is, as the defendants in a suit at law. The case, then, has not the distinctive features of a chancery suit, and section 52, of the statute relied upon, does not help the plaintiff.

Motion to dismiss sustained.  