Demaris v. Barker
| Citation | 74 P. 362,33 Wash. 200 |
| Court | United States State Supreme Court of Washington |
| Decision Date | 27 October 1903 |
| Parties | DEMARIS v. BARKER et al. |
Appeal from Superior Court, Walla Walla County; S. J. Chadwick Judge.
Action by Orlando Demaris against Oliver P. Barker, as executor of the will of Sarena Barker, deceased, and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Gillis & Reynolds and C. B. & W. H. Upton, for appellants.
W. T Dovell and Lester S. Wilson, for respondent.
The respondent brought this action to enjoin the appellants from selling or causing to be sold, as property of the estate of Sarena Barker, deceased, certain real property situated in Walla Walla county, and to quiet his title to the same. The respondent was successful in the court below and this appeal is from the decree entered in his favor.
As a preliminary question, the appellants urge that the trial judge was without jurisdiction to render a judgment in this cause at the time he rendered the judgment appealed from, for the reason that more than 90 days had elapsed since he had taken the cause under advisement, and no rehearing had been had or ordered in the meantime. This contention is founded upon section 20 of article 4 of the state Constitution, which reads as follows: 'Every case submitted to a judge of a superior court for his decision shall be decided by him within ninety days from the submission thereof: provided, that if within said period of ninety days a rehearing shall have been ordered, then the period within which he is to decide shall commence at the time the cause is submitted upon such a rehearing.' As another section of the Constitution declares all of its provisions to be mandatory unless by express words they are declared to be otherwise, it is argued that this provision being mandatory, can have no force or effect if it is not held that delay beyond the period fixed deprives the court of jurisdiction to render a decision. It seems to us, however that such a construction of the section would be directly subversive of its purpose. Manifestly, the purpose of the provision was to secure a speedy determination of causes submitted to the court for decision. 'The law's delays' is not a modern phrase. Judges of the old time were not wholly unlike some of their successors in office. They, too, were inclined to waver between two opinions, fearful to pronounce the one lest the other should be deemed the more powerful, and delays caused thereby have at all times been more or less provalent, and have always been regarded as something of an unmixed evil when viewed from the standpoint of a litigant or the public. It was to furnish a remedy for this that this clause of the Constitution was adopted. It was thought that judges, who derived their authority from that instrument, would obey its behests, or, if they did not, that some means would be found to coerce obedience; or, indeed, it may have been thought that disobedience would be grounds for an impeachment; but certainly it was never thought that the remedy was to be found in the holding that the judgment afterwards rendered is nugatory. To give it this construction is to prolong the very evil it was sought to avoid, and to punish the very persons whom it was intended should be its beneficiaries. If the judgment, when rendered, is to be declared void, then the litigants who have already been subjected to an unconstitutional delay must again be subjected to the additional delays necessary to again bring the cause to the condition it was before the court violated its sworn duty. They must also pay the accruing costs necessary for that purpose. Were the delay something within the control of the litigant, were it caused by his own dereliction, the conclusion contended for might be tolerated. But the litigant cannot control the action of the court after he has submitted his cause for its decision. From that time on it rests within the will of the judge, and the law provides no means by which a litigant can coerce him into action, until, at least, the limit of time has expired which is here thought to render action nugatory. To punish the litigant for the wrongs of the court which he has no power to prevent is not, we repeat, the purpose of this constitutional provision, and to so hold would be subversive of its intent. But this cause was decided by a judge called in from another county, and it is thought that this fact makes some difference in the rule. We think otherwise. The visiting judge, when regularly called, is just as much judge of the court where he is sitting as is the regularly elected judge of that court, and his powers and responsibilities in the matters he is called in to hear are not less nor greater than are those of the regularly elected judge.
Passing to the assignments of error based upon the rulings of the trial court, it is first urged that the court erred in overruling the appellants' general demurrer to the amended complaint. Four reasons are urged in support of this assignment, the first of which is that it appears on the face of the amended complaint that the respondent has no title to nor interest in the property which he seeks to restrain the appellants from selling and to quiet in himself. From the allegations of the complaint it appears that the land in controversy was formerly a part of the estate of Sarena Barker, deceased; that the executor of that estate, after proof of the will of the deceased and the issuance of letters testamentary, and while the estate was in process of administration, joined with the heirs and devisees, who were all adults, in deeds one to the other by which they sought to partition the estate between them. The respondent claims title through one of these deeds, which was made on the 26th day of June, 1890; that is, a deed made prior to the time the statute vesting in heirs and devisees title to the estates of deceased persons immediately on the death of such persons went into effect. The argument of the appellants is that under the rule of Balch v. Smith, 4 Wash. 497, 30 P 648, the heirs at that time had no title to the real property of the estate, and hence their deed could pass no title to the purchaser, and that the executor's deed passed no title, because he could only convey through an order of the probate court, obtained after a showing of necessity, and no such order was obtained. It may be conceded, we think, that the contention of the appellants with reference to the deed of the executor as executor is correct, inasmuch as it is not shown that the will authorized the settlement of the estate without the intervention of the probate court, and no order was obtained directing him to sell the property; for, without the will authorizes it, a deed of an executor of real property of an estate, where the same is not authorized by the court having probate jurisdiction, will pass no title to an executor. The question, then, is, did the heirs have such an interest in the lands of the estate that their deed thereto pending administration passed title to the purchaser? In Balch v. Smith, 4 Wash. 497, 30 P. 648, this court said that, as a general rule, 'the intervention of the probate court and an adjudication and distribution thereunder are essential to the passing of the title of the ancestor to the heir, so perfected as to make it beneficial to him.' This was said in a case where the plaintiffs sought to recover the possession of real property in an action in which their allegation of title was that their ancestor had died seised of the premises; the court holding that it did not follow from this allegation, in view of the probate statutes, that they were entitled to possession. But it is evident that the court did not intend to announce the broad doctrine that an heir had no interest in the real estate of his ancestor which he could convey to another by his deed of the same, prior to a decree of distribution made by a probate court. Such a conclusion would have been contrary both to the statute which it was purporting to construe and to a previous decision of the court. The statute relating to partition and distribution of estates then in force provided specially that when the heirs of an estate had conveyed their interests in the same prior to distribution the portion to which they would otherwise have been entitled should be set aside to the purchasers. Ballinger's Ann. Codes & St. § 6361. Surely, if it were the purpose of the...
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State v. Martin
...was never thought that the remedy was to be found in the holding that the judgment afterwards rendered is nugatory. Demaris v. Barker, 33 Wash. 200, 202-03, 74 P. 362 (1903). In the context of a constitutional violation, the remedy Martin seeks here was rejected by this court in In re Cress......
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Bruegger v. Cartier
...days. McQuillan v. Donahue, 49 Cal. 157; Edmonds v. Riley, 15 S.D. 470, 90 N.W. 139; Demaris v. Barker, 33 Wash. 200, 74 P. 362. In Demaris v. Barker, supra, the court says, speaking of a similar statute: "But certainly it was never thought that the remedy was to be found in the holding tha......
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State v. Miller
...official acts, unlimited or unqualified by negative words, are generally considered directory rather than mandatory. In Demaris v. Barker, 33 Wash. 200, 74 P. 362, court held that the failure of a judge to decide a case within ninety days from its submission, as required by our state consti......
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In re Estate of Harder, No. 26401-7-III (Wash. App. 4/14/2009)
...E.g., In re Estate of Blodgett, 67 Wn.2d 92, 406 P.2d 638 (1965); Chopot v. Foster, 51 Wn.2d 406, 318 P.2d 976 (1957); Demaris v. Barker, 33 Wash. 200, 74 P. 362 (1903). Indeed, a statute vests title to real estate in the heirs immediately upon the death of the owner. RCW 11.04.250.8 Howeve......