Page:Borden v. State ex rel. Robinson.pdf/35

Rh the defendant, will no longer be regarded as law and they are hereby overruled.

And finding in the record that the court had jurisdiction of the subject matter and that the orders in question were made, we find no error in the record and the judgment of the circuit court must be affirmed.

Mr. Justice dissenting.

In this case it appears from the record that Robinson brought suit in the name of the State for his use against Borden and his securities upon the official bond of Borden as sheriff, in which it was alleged as a breach of the bond, that he had failed to levy and make the debt and costs as commanded in a certain writ of ''Fi. Fa.'' issued in favor of Robinson against Woodruff, Executor. Upon an issue of nul tiel record of such recovery, the plaintiff offered in evidence the transcript of a record of an allowance of the debt in the ''fi. fa.'' mentioned, and also an order directing the executor (Woodruff,) to pay the same. To the admissibility of these orders it was objected that although the demand or claim presented to the consideration of the probate court was a subject matter over which it might rightfully entertain jurisdiction, yet inasmuch as no notice whatever was given to the defendant Woodruff, and he not having in any manner made himself a party to the record by appearance or otherwise, that the probate court, in the absence of such jurisdiction over the person of the defendant, could not make a valid order or render any judgment which would bind him, or subject his estate to sale for the payment thereof, and that the adjudication and allowance of the claim and the order for its payment were in fact void.

The transcript offered in evidence discloses no fact from which the remotest inference may be drawn that any notice was ordered or issued, or that Woodruff had any notice actual or constructive, or that he was present or made any appearance, or that he was called to defend, but simply that the plaintiff appeared by attorney, and that the court first examined and allowed the claim. And thereafter at a subsequent term, on