Hampshire v. Woolley
| Decision Date | 23 June 1928 |
| Docket Number | 4507 |
| Citation | 72 Utah 106,269 P. 135 |
| Court | Utah Supreme Court |
| Parties | HAMPSHIRE v. WOOLLEY, Judge |
Original application by Blenda Hampshire for a writ of prohibition against Hon. Dilworth Woolley, Judge of the District Court of Sanpete County, sitting in probate in the matter of the estate of Charles Hampshire, deceased.
WRIT GRANTED.
G. A Iverson, of Washington, D. C., and L. Eggertsen Cluff, of Salt Lake City, for plaintiff.
Shirley S. Atkin, of Mt. Pleasant, for defendant.
This is an original petition to this court for a writ of prohibition against Hon. Dilworth Woolley as judge of the district court of the Seventh judicial district for Sanpete county, state of Utah. Upon the petition of the plaintiff herein an alternative writ was issued.
So far as is necessary to the decision and for a full determination of the question involved, the facts set out in the petition are as follows: Hon. Dilworth Woolley is the judge of the district court of Sanpete county, state of Utah; that Charles Hampshire died intestate on the 25th day of March, 1922, at the home of Blenda Hampshire, the plaintiff herein, who, at the time of the death of the deceased, and for a long time prior thereto, was the plural wife of said deceased; that on the 11th day of March, 1926, letters of administration of the estate of said Charles Hampshire, deceased, were duly issued to Byron Hampshire, a son of the deceased, by order of said Hon. Dilworth Woolley as judge of the district court of said county; that in the course of his administration of said estate said Byron Hampshire, as administrator thereof, filed his petition with the clerk of said district court, in the probate division thereof, wherein said administrator charged that at the time of the death of the deceased the plaintiff, wrongfully, and without right of title thereto, took into her possession, and still retains under her control, two certificates representing 16 shares of stock in the North Creek Irrigation Company, a corporation organized to manage and distribute the water of North creek, Sanpete county, Utah, the value of said stock being $ 1,200; that said certificates to the water stock belonged to the estate of said deceased. Said administrator further alleges that, notwithstanding he has made demand upon the plaintiff for the possession of said certificates of stock, she has refused, and does now refuse, to deliver the same to him, and that she has wrongfully and fraudulently embezzled, converted, and appropriated the same to her own use.
Whereupon a citation was issued in the matter of said estate by the said Dilworth Woolley, as judge of the district court aforesaid, directing the plaintiff to appear before said court on the 18th day of June, 1926, and show cause why she should not be directed to turn over to said administrator said certificates of water stock; that said citation was duly served upon the plaintiff; and that at the time and place fixed therein the plaintiff appeared and there and then testified under oath that said certificates of stock were her own property, that said certificates had been delivered to her by said Charles Hampshire, deceased, prior to his death, for a valuable consideration and with the purpose and intent to transfer all right, title, and ownership in and to said stock to the plaintiff, and that by reason thereof she is the owner and entitled to the possession thereof. Thereupon the court made an order, over the plaintiff's objection, requiring the plaintiff to file a written answer to the allegations contained in the administrator's application for the citation, that on June 24, 1296, the plaintiff made a written answer and filed the same with the clerk of said court, and by said answer the plaintiff admits that she had in her possession the 16 shares of stock in the North Creek Irrigation Company, but denies that said certificates came into her possession wrongfully or without right and without title, and alleges that said certificates of stock were conveyed and delivered to her by the deceased prior to his death for a valuable consideration passing from her to said Charles Hampshire, and that she thereby became the rightful owner and holder and entitled to the exclusive possession of said stock. Thereupon said cause was set down and noticed for trial on October 19, 1926, at which time the administrator was given leave to file a reply to the answer of the plaintiff and the court ordered that the case be set down for trial upon the issue of ownership in and title to said stock upon the application for citation, the answer thereto, and the reply of said administrator. Counsel for plaintiff then and there objected to any further proceedings in the matter upon the ground that the court in said summary proceedings or in any other proceeding in probate was without authority and jurisdiction to try ownership or title to said stock, and that the issue of title could not be joined and tried in said proceedings. The court overruled said objections and announced its intention to hear and determine the title to and ownership of said stock in said probate proceeding.
At this point in the case counsel for plaintiff herein obtained a stay of proceedings to enable him to apply to this court for a writ of prohibition and upon the petition of plaintiff an alternative writ was issued by this court. The defendant filed a general demurrer to the plaintiff's petition, and the only question involved in the case is raised by said demurrer to the petition.
Neither party favored the court with a brief and only counsel for the defendant appeared at the oral argument on the demurrer. In his argument counsel for the defendant contended that, as there is no separate probate court in this state, and inasmuch as the district courts are invested with jurisdiction in probate matters, the court in this case had jurisdiction of the subject-matter; that under section 7733 of the Compiled of Laws of 1917, hereinafter referred to, by the service of the citation on the plaintiff the court acquired jurisdiction of the parties, and thus, having jurisdiction of the subject-matter and of the parties, could properly proceed in the probate proceedings to hear and determine the issues of title and the right of ownership to the stock in...
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...649 S.E.2d 672, 678 (2007). See, also, Reid v. Indep. Union of All Workers , 200 Minn. 599, 275 N.W. 300 (1937) ; Hampshire v. Woolley , 72 Utah 106, 269 P. 135 (1928), overruled in part on other grounds, In re Rice's Estate , 111 Utah 428, 182 P.2d 111 (1947) ; 56 Am. Jur. 2d Motions, Rule......
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