Opinion
April 12, 1910.
PRESENT: Dubois, C.J., Blodgett, Johnson, Parkhurst, and Sweetland, JJ.
(1) Writ of Error. Action on Probate Bond. Where, on writ of error to a District Court, the record does not show that the District Court ever acted on the demurrer alleged to have been overruled, and shows that no final judgment of that court was entered, and that the petitioners, by claim of jury trial, removed the case to the Superior Court, the writ will abate. Whether the District Court had original jurisdiction to entertain an action on a probate bond in the penal sum of $10,000 can be raised in the Superior Court.
WRIT OF ERROR. Writ abated.
Samuel W.K. Allen, for petitioners.
Peter C. Cannon, for respondents.
This is a writ of error to the District Court of the Fourth Judicial District.
The record in the case does not show that said District Court has ever acted upon the demurrer alleged to have been overruled by said court in the petition for a writ of error; and does show that no final judgment of the District Court was entered, to which a writ of error would issue, and that the petitioners for the writ, being the defendants in the original action, have removed the case to the Superior Court by their claim of jury trial, and that the case is now pending in the Superior Court. Whether the District Court had original jurisdiction to entertain an action on a probate bond in the penal sum of $10,000 is a question which can, if desired, be raised in the Superior Court, which has not yet heard the cause now pending therein.
The writ of error is accordingly abated.