Chapter 11

ESTABLISHING JUSTICE IN THE COUNTY.

Classes of Cases.--There are three general classes of judicial business carried on in the county: probate business, civil actions, and criminal prosecutions.

PROBATE COURTS.

Jurisdiction.--The principal business and characteristic work of probate courts is the settlement of the estates of deceased persons. Jurisdiction extends in most states over both personal property and real estate. Incidentally probate courts appoint guardians for minors and others subject to guardianship, and control the conduct and settle the accounts of such appointees.

In many states jurisdiction wholly extraneous to the characteristic work of these courts is imposed upon them, or the probate business is associated with other jurisdiction in the same court. Thus, in Minnesota the judge of probate is petitioned in the organization of cities, as we have seen. In Wisconsin, the county court, which has charge of the probate business, has civil jurisdiction also. In Illinois, the county court in addition to the probate business has jurisdiction "in proceedings for the collection of taxes and assessments." And in Kansas, the probate court has jurisdiction in cases of _habeas corpus_.

Procedure in case a Will has been made.--The proceedings of a probate court have in view two chief objects, namely, to pay the debts of the deceased and to distribute the remainder of his property among those entitled to it. In case the deceased has left a will, the proceedings are as follows:

1. _Petition for probate._ Within a short time, usually thirty days, after the death of the testator, the executor or other custodian of the will presents it to the probate court with a petition that it be admitted to probate. (For form of petition, see p. 286.)

2. _Citation to persons interested._ Acting on the petition, the probate judge publishes in a newspaper a notice to all persons interested in the estate that at a specified time, action will be taken on the petition. To afford all who are interested an opportunity to be present at the "hearing," the notice must be published for a prescribed time, and in some states each of the heirs must, if possible, be personally notified.

3. _Hearing the proofs._ At the time specified in the notice, unless postponement be granted for cause, the proofs of the validity of the will are presented. It must be shown that the testator is dead, that the instrument was executed by him voluntarily, in the manner prescribed by statute, and while he was of "sound mind and disposing memory." Usually it will be sufficient for the two witnesses to the instrument to appear and testify to the material facts. If any one interested in the distribution of the property thinks that this will should not be accepted as the "last will and testament" of the deceased, he should now enter objections. In case of a contest, the proceedings are about the same as those in a justice or circuit court; but there is no jury in the probate court, nor is there any plea except the petition.

4. _Admission to probate._ If the proofs are satisfactory to the court, the will is "admitted to probate," that is, it is accepted as true and valid. Its validity is established by a decree of the court, and a certificate of the fact is attached to the will. A copy of the will is made in a book kept for the purpose. The original and all the papers in the case are filed and preserved by the judge of probate. (See pp. 287 and 288.)

5. _Issuance of letters testamentary_. The genuineness of the will being established, it is now in order to carry out its provisions. Usually the testator designates in his will the person or persons whom he wishes to act as his representative in the settlement of the estate. Such a person is called an "executor." If no person is so named, the court appoints an "administrator with the will annexed." In either case the person derives his authority from the court. Unless excused in the will, the executor or administrator is required to give bonds proportioned to the amount of the personal property in the estate, the amount of bond being specified by the court. The executor is then furnished with a copy of the will and with "letters testamentary." (The authority granted by the letters may be seen by reference to the form in the appendix, p. 288.)

6. _Notice to creditors_. It is a principle of law that all just debts shall be paid out of one's property before any further disposition thereof can take effect. In order that all persons having claims against the estate of the deceased may have an opportunity to present their accounts, a time for such presentation is designated by the court, and due notice thereof is given, usually by publication in a newspaper.

7. _Inventory of the estate_. In the meantime, the executor makes an inventory of the property, and appraisers appointed for the purpose "put a value" thereon, the several items of the inventory being valued separately.

8. _Auditing claims._ At the time appointed in the notice, the court passes upon the claims of creditors. Since unscrupulous persons are at such times tempted to present fraudulent claims, the judge exercises great care in examining the accounts. To facilitate matters it is required that accounts be itemized, and that they be verified by oath.

Debts are paid out of the personal property, if there be enough. If not, the court authorizes the executor to sell real estate to pay the balance.

9. _Settlement of estate and division of property._ The executor having collected debts due the estate and settled all claims against it, makes his final statement to the court, and the remaining property is distributed among the heirs and legatees. To continue and perfect the chain of title, the division of the real estate is recorded in the office of the register of deeds.

If there are minor heirs, the court appoints guardians for them.

Procedure in case no Will is made.--If there is no will, the four steps which have in view the establishment of the validity of the will, are unnecessary. The initial step in this case is the appointment of an administrator to do the work which under a will is done by the executor. In order that an administrator acceptable to the heirs may be appointed, the following steps are taken:

1. Someone interested in the estate petitions for the appointment of a certain person as administrator.

2. Notice of hearing is given by publication, citing those interested in the estate to appear at a certain day if they desire to enter any objection to the appointment.

3. If at the time specified for the hearing no objection is made, the person petitioned for is appointed administrator, and "letters of administration" are issued to him.

Then beginning with the sixth step the proceedings are substantially the same as in case of a will, except that the basis of distribution in the ninth is the _law_ instead of the _will_.

"As befits an authority which thus pervades the sanctity of a household, crosses the threshold and exposes to public view the chamber of mourning, probate jurisdiction in the United States is exercised with great simplicity of form as well as decorum." [Footnote: Schouler's Executors and Administrators.]

_Some Pertinent Questions._

What is a will? [Footnote: See Dole's Talks about Law.] Why must it be in writing? Must it be in the handwriting of the testator? Why are the witnesses essential? Is the form of a will essential? Is it necessary that the witnesses know the contents of the will?

What is the difference between an heir and a legatee? May either be witness to the will? Why? If the witnesses die before the testator, how can the will be proved?

What is a codicil? If there be two wills of different dates, which will stand? What difference does it make whether a person having property makes a will or not?

Group the proceedings in case of a will into three groups.

A minor may have two guardians, one of its person and the other of its property? Why? What is to hinder a guardian from abusing his trust?

DISTRICT, CIRCUIT OR SUPERIOR COURTS.

Jurisdiction.--This court has original jurisdiction in all civil and criminal cases within the district which do not come within the jurisdiction of the justice courts. It has appellate jurisdiction from probate and justice courts as provided by law.

Procedure.--The proceedings are substantially the same as in a justice court except that in criminal cases they are based upon an indictment by the grand jury, and after the arguments the judge "charges" the jury, that is, instructs it regarding its duty.

Pleadings.--The pleadings in the district court are somewhat more elaborate than in a justice court, and a few words in regard to them further than what has already been given may not be out of place here.

The defendant in making his plea may raise a question as to the jurisdiction of the court, or he may ask that the case be thrown out of court on account of some irregularity of the writ upon which it is based. Since these pleas, if successful, simply delay the trial, because a new suit may afterwards be brought, they are called _dilatory pleas_.

But he may deny the plaintiff's ground of action by denying the allegations of the plaintiff and challenging him to trial. This plea is called the general issue. He may admit the plaintiff's allegations but plead other facts "to avoid their effect." This is called the plea of confession and avoidance. These pleas are on the merits of the case, and are called _pleas in bar_. There are other pleas of this kind.

"Pleas in bar, except the general issue, may give rise to counter pleas" introduced by the parties alternately.

But the issue may be one of law instead of fact, and the defendant may enter a _demurrer_, claiming that the matters alleged are not sufficient in law to sustain the action.

Evidence.--Some of the fundamental principles or rules which govern the taking of evidence and the weighing of testimony may properly appear here. These rules are designed to exclude all irrelevant matter and to secure the best proof that can be had.

1. _Witnesses must be competent_. That is, in general, they must be able to understand the nature and solemnity of an oath. This will usually exclude children below a certain age, insane persons and persons drunk at the time of offering testimony.

2. _Witnesses must testify of their own knowledge_. Usually they are barred from telling what they simply believe to be the fact or what they have learned from hearsay.

3. _Evidence must go to prove the material allegations of the pleadings_. It must be confined to the question at issue. It is to be observed that the evidence must not only go to prove the matter alleged, but it must be the _material_ not the superfluous matter. What is material and what superfluous will depend upon the case. Thus if it is alleged that a suit of clothes was obtained by the defendant at a certain time, his obtaining the clothes is the material fact and the time may be superfluous or immaterial. But if a note is in controversy its date is material as establishing its identity.

4. _"The evidence must be the best of which the case is susceptible."_ Thus, in case of a written instrument the best evidence is the instrument itself; the next best, a copy of it; the next, oral statement of its contents. And a copy will not be accepted if the original can be produced.

5. _The burden of proof lies on the affirmative_. In civil cases the party affirming is usually the plaintiff. In criminal cases it is the state. Harmonizing with this principle is the constitutional provision that in criminal cases the accused shall not be required to give evidence against himself.

These are the principal rules of evidence, but they have many applications. Learned volumes have been written elaborating them.

Grand Jury.--A grand jury may be defined as a body of men returned at stated periods from the citizens of the county, before a court of competent jurisdiction, chosen by lot, and sworn to inquire of public offenses committed or triable in the county.

The number of grand jurors was formerly twenty-three. By statute many of the states have fixed upon a smaller number, Oregon having only seven. A common number is fifteen. Some states have no grand jury. In some others the grand jury is summoned only when requested by the court.

The United States constitution and most of the State constitutions declare that no person shall be held to answer for a criminal offense, except a minor one, "unless on the presentment or indictment of a grand jury." This is to save people from the vexation and expense of arrest and trial unless there is reasonable presumption of their guilt. On the other hand, a grand jury should aid in bringing to justice persons who indulge in practices subversive of public peace, but which individuals are disinclined to prosecute, such as gambling. Incidentally the grand jury examines into the condition of the county jail and poor-house.

The mode of selecting grand jurors is in general the same in all the states. The steps are three: first, the careful preparation of a list of persons in the county qualified to serve; second, the selection, by lot, from this list of the number of persons needed; third, the summoning of the persons so chosen. The number of persons in the first list is from two to three times the number of jurors. The preparation of the list is in some states entrusted to the county board; in others, to jury commissioners; in others, to the local boards. The names are reported to the clerk of the court, who in the presence of witnesses, makes the selection by lot. The summoning is done by the sheriff.

On the first day of the term, the court appoints one of the jurors foreman. The jury is then sworn, and, after being charged by the court, retires to a private room and proceeds to the performance of its duty.

The deliberations of the grand jury are conducted in secret. It may, however, summon and examine witnesses, [Footnote: Witnesses for the accused are not usually examined by the grand jury.] and may have the advice of the court or of the county attorney.

The fact that a crime has been committed within the county may be brought to the notice of the grand jury by any member thereof or by any other person. If upon examination there seems to be reason for believing that it was committed by the person accused, the county attorney is called upon to frame a formal accusation against him, called an _indictment_, which is endorsed with the words "a true bill," and sent to the court. Upon the indictment the person accused is arrested and tried.

If the evidence against the accused is insufficient to warrant indictment, but yet his innocence is questionable, the grand jury may bring a _presentment_ against him. This is an informal statement in writing addressed to the court setting forth the offense and stating that there is a reasonable probability that a certain person, named, has committed it. A person arrested on a presentment is examined before a justice of the peace or other magistrate, as if arrested on a complaint. Neither an indictment nor a presentment can issue except upon concurrence of the number of grand jurors specified by statute. Under former practice the jury numbered twenty-three and the concurrence of twelve was necessary.

The grand jury is bound to investigate the charge against any one held by a justice "to await the action of the grand jury;" also any charge brought by a member of the grand jury. And conversely it is the sworn duty of each member to report any crime known by him to have been committed within the county. Any outsider may file information or bring charges, but the grand jury may use its own judgment as to the necessity of investigating them.

Petit Jury.--A petit jury is a body of twelve men impaneled and sworn in a district court to try and determine by a true and unanimous verdict, any question or issue of fact, in any civil or criminal action or proceeding, according to law and the evidence as given them in court.

The mode of selecting petit jurors is in general the same as that pursued in selecting grand jurors. The "list of persons qualified to serve" is, however, usually larger. The "selection by lot" is made thus: slips of paper, each containing one of the names, are folded and deposited in a box. The box is shaken, and the prescribed number of slips is drawn. The persons whose names thus appear are summoned as jurors.

When an action is called for trial by jury, the clerk draws from the jury box the ballots containing the names of the jurors, "until the jury is completed or the ballots exhausted." If necessary, the sheriff under direction of the court summons bystanders or others in the county to complete the jury. Such persons are called _talesmen_.

To secure an impartial jury, each party may object to or "challenge," a number of the jurors. The challenge may be "peremptory" or "for cause." The peremptory challenge, as its name implies, is one in which no reason need be assigned. The number of such challenges must, of course, be limited. In civil suits it is usually limited to three by each party. In criminal cases, the state has usually two peremptory challenges and the defendant five. If the offense is punishable with death or state prison for life, the state has in Minnesota seven peremptory challenges and the defendant twenty.

Challenges for cause may be either general or particular. A general challenge of a proposed juror may be made on the basis of his incompetency or unworthiness to act in such capacity in _any_ action. A particular challenge may be based on some bias in this particular case which would unfit the proposed juror for rendering an impartial verdict.

Habeas Corpus.--Not connected directly with trials but related to the district court is the writ of _habeas corpus_. This is the most famous writ in law, and has been styled "the chief bulwark of liberty." It was designed originally to secure a person from being detained in prison without due process of law, and it served as a mighty check upon arbitrary power. Its operation has been extended so as to include any detention against the will of the person detained. The writ, as will be seen by reference to the appendix (p. 290), commands the person holding another in custody to bring him before the judge and show cause for the detention. If the judge finds that the prisoner is detained for cause he remands him to custody; if not he orders his discharge.

Concluding Remarks.--This discussion might easily be continued. Volumes have been written on the administration of justice. But perhaps enough has been given to show that great care is taken to protect the interests of the innocent and to do equal and exact justice to all. In view of flippant remarks sometimes made regarding courts of justice, it is pertinent and proper to go at least so far into detail. The study of Civil Government will have been pursued to little purpose if respect for law be not one of its fruits.

_Some Pertinent Questions_

How many judicial districts in this state? [Footnote: Consult Legislative Manual.] How many counties in the largest? In the smallest? How many have more than one judge? Why not let each county constitute a judicial district?

If some one owed you $40 and refused to pay, in what court could you sue? If he owed you $250? If the suit involved $1,000,000?

What is the relation of the plea to the action? Can anything be proved which is not alleged in the plea? Show the purpose of each rule of pleading. Of each rule of evidence.

What are the differences between a grand jury and a petit jury? Why is each so named?

If a person accused of crime is examined and held by a justice of the peace, as stated in a previous chapter, must he be indicted by a grand jury before he can be tried? Why? May a person's acts be inquired into by the grand jury without his knowing anything about it? May grand jurors reveal the proceedings of the jury? Why?

Why is there such a thing as a peremptory challenge of a juror? Why so many given to a person accused of crime?

Are lawyers officers of the court? What oath does each take on admission to the bar?

_Questions for Debate_

Resolved, That trial by jury has outlived its usefulness.

Resolved, That capital punishment is not justifiable.

_References_.--Dole's Talks about Law; Lieber's Civil Liberty and Self Government, 234-6; The Century, November 1882; Atlantic Monthly, July 1881; North American Review, March 1882 and July 1884.