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CHAPTER VII.
The Case of Ferris v. Higley, in Which it Was Decided That the Probate Courts of the Territory Did Not Have Civil or Criminal Jurisdiction.
Previous to the time the case of Ferris v. Higley was commenced in the probate court of Salt Lake County, I had in several cases put in issue the jurisdiction of that court. But in all of those cases the question of jurisdiction was avoided, and decided in favor of my clients on other grounds. When employed by the defendant in the Ferris case I determined to test the jurisdiction of the court, and with that purpose in view filed a plea to the jurisdiction. Upon its being overruled I rested the case and appealed to the district court from the judgment rendered. That court reversed the judgment of the probate court and sustained the plea. The plaintiff appealed to the supreme court of the Territory, and the district court was sustained. The case was carried by writ of error to the supreme court of the United States. The decision of the court is reported in 20 Wall., 373, and what was decided is shown by the following syllabus of the case.
"The act of the territorial legislature conferring on the probate courts a general jurisdiction in civil and criminal cases, both at chancery and at common law, is inconsistent with the organic act, and is therefore void."
The only courts having general civil and criminal jurisdiction in equity and at common law were the district and supreme courts of the Territory. Yet from the time that the first legislature passed the void act referred to, the probate courts continued to exercise illegally general, civil and criminal jurisdiction, until the final decision of the case of Ferris v. Higley. During that time practically all the legal business, except a few cases in which the United States was a party, was transacted in the probate courts of the Territory.
In several instances individuals were convicted of capital crimes and executed. Of course, all the judgments and decrees rendered in said courts were void. The granting of such unwarranted jurisdiction to the probate courts was inexcusable, and its purpose was to transfer the legal business in local matters, rightfully belonging to the district courts, to courts chosen by and under the control of the hierarchy which existed here.
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