Foley v. Hartley

• Citation: 72 F. 570
• Decision Date: 02 March 1896
• Docket Number: 602.
• Parties: FOLEY et al. v. HARTLEY et al.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada

72 F. 570

FOLEY et al. v. HARTLEY et al.

No. 602.

United States Circuit Court, D. Nevada.

March 2, 1896

W. E F. Deal, for complainants.

James F. Dennis and Henry Mayenbaum, for respondents.

HAWLEY District Judge (orally).

On July 26, 1894, M. D. Foley died intestate in Washoe county, Nev. The value of his estate is estimated and was appraised at over $150,000. On August 1, 1894, Mrs. Minnie D. Foley, widow of deceased, petitioned the district court of Washoe county for letters of administration, and on the 20th day of August she was duly appointed administratrix of said estate. On the same day T. V. Julien was appointed an attorney to represent the absent heirs. On July 12, 1895, the administratrix filed a petition praying for partial distribution of the estate. In this petition she states the heirs of M. D. Foley, deceased other than herself, to be Johanna Foley, his mother; John D Foley, Jeremiah Foley, and Edmund D. Foley, his brothers; and Anna D. Foley, his sister. August 20, 1895, was set for the hearing of said petition, and due notices thereof were posted as required by law. On the 13th day of July, 1895, Dr. George H. Thoma filed a petition for letters of guardianship of the person and estate of Vernon Harrison Hartley, a minor claiming that said minor's estate 'consists of an undivided one-half of the estate of M. D. Foley, deceased, to wit, real estate and personal property in said country,' and on the same day an order was duly made and entered appointing Dr. Thoma as guardian of said minor's person and estate. On the 9th day of August, 1895, John D. Foley, his brothers, mother, and sister, who will hereafter be designated as the 'nonresident heirs,' commenced this suit in the United States circuit court; averring that the claim of the defendants casts a cloud upon their title to the one-half interest of the estate of M. D. Foley, and praying for a decree that said minor Vernon Harrison Hartley, 'does not own, nor is he entitled to have, any part of the estate of said M. D. Foley, deceased, as an heir at law or otherwise, and that your orators are heirs at law of said M. D. Foley, deceased, and as such are entitled to * * * the undivided one-half thereof claimed by said minor,' etc. On the 16th day of August, 1895, Vernon Harrison Hartley, by his guardian, filed in the proceedings pending in Washoe county an answer to the petition of Mrs. M. D. Foley for partial distribution; averring, among other things, 'that he, the said minor, is the posthumous and illegitimate child, and the son and offspring of his mother, Alice M. Hartley,' an unmarried woman; that before his birth his said father, M. D. Foley, deceased, prior to his death, did, in writing signed in the presence of a competent witness, acknowledge himself to be the father of said illegitimate child. He objects to any distribution to the 'non-resident heirs,' and prays for a decree that they are not entitled to any part of said estate, and that one-half of said estate be distributed, awarded, and given to said minor child. On the 17th day of August, 1895, the district court made an order that the 23d day of September, 1895, be appointed for the hearing of the petitions of Mrs. M. D. Foley and Vernon H. Hartley, and the distribution of the estate, and the usual notices of such hearing were given. With reference to this order, J. F. Dennis, one of the attorneys for the minor heir, testified upon the hearing of the plea in abatement that on the day the order was made he met Mr. Julien, and said that he had ascertained that he (Julien) was an attorney for the absent heirs, and that he (Dennis) was going to appear before the court to have the petition of the minor heir for a partial distribution of Foley's estate set for hearing, and that Julien stated he did not care when it was set down, provided it was distant 30 days; that after some contention 'we agreed to set it down upon the day named in the minutes of the court. ' He also testified that at that time he was aware that the nonresident heirs had filed their bill of complaint, by W. E. F. Deal, their attorney, in the United States circuit court, and that a copy of the subpoena had been served upon Dr. Thoma, guardian of the minor heir, five or six days before the order was made. W. E. F. Deal, counsel for complainants, testified as follows:

'I am the attorney for the Eastern heirs. I was retained as quickly as a letter could go to the place where these parties reside, and an answer be returned. There never has been an attorney for these persons who filed this bill of complaint and a supplemental bill in the matter of this contest, except myself. Mr. Julien was not employed in this matter. He informed them of the fact, and they employed me; and I have been their attorney from the time letters of guardianship were issued, on the 13th day of July, 1895. * * * I learned of it on the 15th. I was appointed to represent them in this contest, and there never has been any other attorney except myself in that matter. * * * I never received any notice of the intention of counsel representing the guardian and the minor that they intended to take any steps to set the petition that I filed for Mrs. Foley for hearing. I never knew it until after it had been done, and it was never Mrs. Foley's intention, or was it mine, to proceed any further with her petition; but the intention always has been to let the heirs take their own course, as their counsel might advise them.'

On August 19, 1895, Mrs. M. D. Foley filed in the state court an order dismissing her petition for partial distribution of the estate, and asked that the order theretofore made 'fixing the 23d day of September, 1895, for the hearing of said petition, be set aside and vacated. ' On September 23, 1895, Mrs. M. D. Foley appeared by her attorney, W. E. F. Deal, and filed a demurrer to the petition of Vernon Harrison Hartley for a distribution of the estate. On the same day the nonresident heirs, complainants herein, appeared specially in the state court, and filed objections to the jurisdiction of the court, and to the hearing, consideration, or determination of the petition of Vernon Harrison Hartley. On the same day a citation was issued to Dr. Thoma, guardian of the minor heir, to testify and exhibit the writing of M. D. Foley acknowledging the minor to be his child, before the court, on the 28th of September, 1895. On the same day complainants herein filed their petition and bond for the removal of the case to the United States circuit court, and the court thereupon made an order of removal...