Bowen v. Stewart
| Decision Date | 09 January 1891 |
| Docket Number | 15,688 |
| Citation | 26 N.E. 168,128 Ind. 507 |
| Parties | Bowen et al. v. Stewart, Administrator |
| Court | Indiana Supreme Court |
R. C Pollard, C. R. Pollard and M. Winfield, for appellants.
L. B Sims, J. A. Sims, M. A. Ryan, J. H. Gould and G. R. Eldridge, for appellee.
This was an application to remove an administrator. The decedent had been for many years a citizen of Carroll county, and died a citizen thereof on the 10th day of February, 1890, intestate, leaving, as his only heirs, his widow, Catherine J. Bowen, and his children, Abner T., Nathaniel, Edward, and Henrietta T. Bowen, and Mary Busey, who are the appellants.
On the 3d day of April, 1890, the appellee was appointed by the Carroll Circuit Court the administrator of the estate of said decedent, no one having taken out letters of administration upon said estate antecedent thereto.
The application to remove the appellee was not antagonized by motion, or demurrer, and hence we need not stop to inquire whether, conceding all that is alleged therein to be true, it disclosed any sufficient cause for the appellee's removal, except to state that none of the causes given in the statute for the removal of an administrator are stated. Section 382, Elliott's Supplement.
It alleges that on the day of the appointment, and before it had been made, the court had been adjourned for the day, and until 8:30 a. m. of the next day, and, upon request, the judge caused the sheriff to reconvene the court; and thereafter, and while court was thus in session, the appointment was made, the clerk being present when the appointment was made.
The judge had the undoubted right to cause the court to be opened, and thereafter to transact any business that might properly come before it.
The adjournment of the court was a mere intermission, for, in contemplation of law, court was in session during the term fixed by law, or until its final adjournment. Stefani v. State, 124 Ind. 3, 24 N.E. 254. During the term the court might control, in a proper manner, its own sittings. Wartena v. State, 105 Ind. 445, 5 N.E. 20.
The appellee filed an answer to which a demurrer was filed and overruled, and the appellants reserved an exception.
The appellants moved the court for a change of venue from the county, which was overruled, and they reserved an exception; they then filed a motion for a change from the judge, and this motion being overruled they saved an exception. The cause was thereafter submitted to the court for trial, and after hearing the evidence a finding was returned for the appellee, and over a motion for a new trial judgment was rendered refusing to remove the appellee, as the administrator of his said trust.
The answer is very lengthy and we will not undertake to give even the substance of the averments contained therein.
It is sufficient to state that the facts therein averred disclose abundant reasons for the appointment of an administrator to administer upon said estate at the time the appellee was appointed. It further appears from the averments therein that neither the widow nor the children had any intention to take out letters of administration.
More than twenty days had elapsed after the death of the decedent before letters of administration were issued to the appellee, to wit, fifty-two days. Under the statute in force when the appointment was made, either the clerk of the court or the court itself might make an appointment after twenty days, and appoint any competent inhabitant of the county. Section 2227, R. S. 1881.
The appellants were not entitled to a change of venue nor to a change of judge.
A proceeding to remove an administrator is a proceeding summary in its character, to which the statute providing for changes of venue and change of judges does not apply.
Besides, the appointment and removal of an administrator, and the dealings which he has with his trust, are so exclusively under the supervision of the judge of the court wherein the estate is pending for settlement that it is evident it was never the legislative intention that this supervision might be destroyed by the filing of an affidavit for a change of venue, or for a change of judge.
If the appellants were entitled to a change of venue, or change of judge, then the appellee was so entitled; and if an administrator may apply for a change from the county, or judge, in an application for his removal, we know of no reason why he may not do so when he presents a partial, or his final settlement report. An...
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Coleman v. Mitnick
... ... Bowen, et al v. Steward, Administrator (1891), 128 Ind. 507, 26 N.E. 168, re-hearing denied 128 Ind. 507, 28 N.E. 73. It is also established that only one ... ...
- Bowen v. Stewart