First National Bank of Holbrook v. Superior Court of the State of Arizona, Civil 3356

• Decision Date: 01 December 1933
• Docket Number: Civil 3356
• Parties: THE FIRST NATIONAL BANK OF HOLBROOK, a Banking Corporation, and J. R. McEVOY, Petitioners, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF APACHE, and THE HONORABLE LEVI S. UDALL, as Judge Thereof, Respondents
• Court: Arizona Supreme Court

27 P.2d 525

42 Ariz. 467

THE FIRST NATIONAL BANK OF HOLBROOK, a Banking Corporation, and J. R. McEVOY, Petitioners, v. THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF APACHE, and THE HONORABLE LEVI S. UDALL, as Judge Thereof, Respondents

Civil No. 3356

Supreme Court of Arizona

December 1, 1933

Original proceeding upon Writ of Certiorari to the Superior Court of Apache County, Arizona. Order of the Superior Court of Apache County set aside and vacated.

Mr Sidney Sapp and Mr. Guy Axline, for Petitioners.

Mr Isaac Barth and Mr. Rex E. Lee, for Respondents.

OPINION

RODGERS, Superior Judge.

This is an original proceeding instituted in this court, upon a petition praying that a writ of certiorari issue to the superior court of Apache county, Arizona, commanding the certification of the records and proceedings in probate cause numbered 205, in that court, in so far as such probate proceedings relate to that certain order of disclosure entered by the court, and the proceedings incident thereto, wherein Jacob Barth, administrator of the estate of J. M. Sandoval, deceased, was the petitioner, and the First National Bank of Holbrook, Arizona, and J. R. McEvoy were respondents, to the end that same might be reviewed by this court

Upon the allegations of the petition, the writ was ordered to be issued, and in response to the order contained in the writ, the judge of the superior court of Apache county caused the clerk of said court to certify to this court all proceedings and records in said probate cause No. 205, in so far as such records and proceedings are pertinent to the matters referred to and complained of in the petition filed in this court.

Briefly summarizing the allegations of the petition, and the facts as disclosed by the record, it appears therefrom that one J. M. Sandoval died on the seventeenth day of November, 1932; that on the fifth day of January, 1933, Jacob Barth was appointed administrator of his estate, and duly qualified as such administrator; that on or about the tenth day of March, 1933, the administrator instituted an action in the probate side of the superior court of Apache county, against the petitioners herein, alleging that these petitioners, the respondents therein named, had embezzled, concealed, disposed of or appropriated to their own use the proceeds of a certain check in the amount of $2,469.29, which was a part of the assets of the estate of J. M. Sandoval, deceased.

The petition filed in the probate proceedings alleges in detail all of the acts in the premises done by the First National Bank of Holbrook, Arizona, and J. R. McEvoy concerning which complaint was made and a disclosure sought.

Upon the petition there filed by the respondents herein, a citation was issued commanding the petitioners in this action, as the respondents there, to appear in the probate court of Apache county, Arizona, then and there to be examined upon oath upon the matters set forth in the petition of the administrator.

In response to said citation the respondents there, who are the petitioners here, specially appeared for the purpose of presenting a plea to the jurisdiction. They also filed a motion to quash the citation; a motion to dismiss the action; a motion to strike certain designated paragraphs of the petition, and also to strike all of said petition; a special demurrer, and a verified answer in which is set forth at length all facts in their possession, and all information known to them personally, or otherwise obtained by them relative to the disposition of the money concerning which inquiry was being made in the proceedings instituted by the administrator in the probate cause involved, and having divulged under oath all such facts and information said answer further sets forth the reasons for the claim of the First National Bank of Holbrook to the funds in question, and its contentions in the premises; and having thus answered under oath, the answer prays that no further proceedings be had in said cause.

All motions of the respondents were by the court denied and the plea to the jurisdiction and demurrer were overruled; and on March 18, 1933, a hearing on the petition and citation was held; and on motion of the petitioners the verified answer of the respondents was by the court stricken.

The petitioners called three witnesses to testify and rested without calling to the witness-stand the respondents who were present in the court in obedience to the citation commanding them to appear and be examined on oath upon the matters set forth in the petition of the administrator.

The respondent, J. R. McEvoy, was thereafter called to testify by counsel for the respondents, and being duly sworn testified fully in regard to the matters set forth in the petition and also in the answer of the respondents, but was prevented from answering many pertinent questions by objections interposed by the petitioners and by the court sustained.

The court, thereafter, filed its findings of fact and in connection therewith issued an order requiring disclosure, and attached to said order eight interrogatories which it commaned respondents to answer under penalty of commitment to the county jail for failure or refusal so to do.

Petitioners have here presented in connection with their petition ten assignments of error, which they rely upon to support their contentions.

We are of the opinion, however, that they all necessarily involve the question of the jurisdictional powers of the court in connection with the proceedings here in controversy and we will, therefore, consider them together to ultimately determine whether or not the court exceeded its jurisdiction in the premises.

It is obvious that sections 3968, 3969 and 3970 of article 8, chapter 88, of the Revised Code of Arizona, 1928, were intended to provide a summary procedure whereby an administrator or an executor may acquire more definite knowledge, and ascertain any facts not in his possession, in regard to property of a decedent, that he, or those otherwise interested in the estate, may suspect is being concealed, embezzled, conveyed or disposed of by some third party in derogation of, and contrary to, the rights and interests of those who are legally entitled to the assets of the estate. The proceeding is intended as a statutory grant of authority under and by virtue of which matters occurring prior to the administration of which the administrator is ignorant may be discovered, to the end that he may stand on equal terms with the party proceeded against, and it therefore necessarily follows that the information and facts thus be obtained is for the sole purpose of enabling the administrator to institute in the proper forum, whatever proceedings may be deemed necessary to recover property or money that may belong to the estate.

It is therefore manifest that before the prerogative and privileges permitted by the statutes in question may be properly invoked, two necessary requisites must exist. There must be some reasonable predicate for a belief that the person against whom the proceedings are directed has concealed, conveyed, embezzled or disposed of property, or money, rightfully belonging to the estate, and the administrator must be ignorant of the facts and conditions surrounding the acts of such third person in regard to the matter complained of, and concerning which inquiry is made. If the administrator is advised of the facts from other available sources of information, or if, in any event, the property or money involved does not belong to the estate, then the proceedings are not warranted, and amount only to an idle gesture, having no sanction in the law.

It is equally apparent that the proceedings here under consideration cannot properly be invoked to determine title to property, nor controverted questions between the administrator and third persons, not interested in the estate, who claim the title to such property or the right to possession of same upon some asserted legal or equitable grounds.

Considering and deciding the jurisdictional scope and limitations of a probate court under similar statutes existing in the state of Illinois, the Supreme Court of the state, in the case of Moore et al. v. Brandeburg et al. 248 Ill. 232, 93 N.E. 733, 140 Am. St. Rep. 206, said:

"defendants in error contend that the demurrer was properly sustained because plaintiffs in error have a complete and adequate remedy at law. The remedy pointed out is the appointment of an administrator, and a proceeding, under sections 81 and 82 of the administration act, by citation against defendants in error. Those sections have been frequently before the court and as understood and construed were not designed to apply to a case like this. In the case of Dinsmoor v Bressler, 164 Ill....