
    
      REELS vs. KNIGHT.
    
    Appeal from the court of the fifth district.
    If in a suit for partition, the defendant set up a title in himself which is alledged by the plaintiff to be simulated, the court of probates has no jurisdiction of the case.
   Porter, J.

delivered the opinion of the court. This action was commenced in the court of probates to obtain a partition of the estate of the mother of the plaintiff and defendant. The defendant set up title to himself in the premises, and the plaintiff alleged that the sale was simulated and fraudulent.

West’n Dis’ct

August, 1826.

And the want of jurisdiction being ratione materiœ is not cured by consent.

An appellate court cannot give a judgment which the court a qua could not.

No plea was put in to the jurisdiction, the cause was tried on its merits, and judgment given for the defendant. The plaintiff appealed to the district court, where the case was submitted to a jury, who found a verdict in his favor, and from the judgment rendered thereon the defendant appealed.

The court of probates had no jurisdiction of a case like this. The question was title, of which the ordinary tribunals could alone take cognizance. This has been expressly decided in the following cases, and it is not necessary to repeat the reasoning on which they are founded. Williams vs. Spencer & al. Harris’ Tutor vs. M’Kee & al. & Donaldson & al. vs. Dorsey & al. vol. 4, 77, 487, 509.

The first case was precisely that before the court, and it too was an appeal to the district court. It was there contended that as the latter tribunal had original jurisdiction of the cause, it was well seized of it, in its appellate capacity. But we were of opinion that this circumstance did not cure the defect, because the appellate court never can give a judgment, which the court a qua could not.

Ogden & Brownson for the plaintiff, Bowen & Baker for the defendant.

The objection being to the want of jurisdiction ratione materiæ, consent did not cure it.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that the petition be dismissed with costs.  