Holt v. Idleman

• Decision Date: 14 September 1898
• Parties: HOLT v. IDLEMAN.
• Court: Oregon Supreme Court

54 P. 279

34 Or. 114

HOLT v. IDLEMAN.

Supreme Court of Oregon

September 14, 1898

Appeal from circuit court, Clackamas county; T.A. McBride, Judge.

Contest of will by Grant Holt, administrator of Thomas Holt, against C.M. Idleman, executor of Matilda D. Holt, deceased. From decree of circuit court affirming decree vacating the will the executor appeals. Dismissed.

F.T. Griffith, for appellant.

A.M Cannon, for appellee.

PER CURIAM.

This is a motion to dismiss an appeal. The transcript shows: That on February 8, 1893, the county court of Clackamas county admitted to probate an instrument purporting to be the last will and testament of Matilda D. Holt, deceased, and issued letters testamentary to C.M. Idleman, the person named in said will as the executor thereof, who qualified and entered upon the discharge of the duties of said trust. That on February 20, 1896, said court, upon the petition of Thomas Holt, surviving husband of the testator, found that said will was void, and revoked the order admitting it to probate, and appointing an executor thereof. From this decree the executor appealed to the circuit court of said county; but on October 15, 1896, and before the appeal came on for hearing, Thomas Holt died intestate, and the county court of Linn county appointed Grant Holt administrator of his estate. That on May 3, 1897, the circuit court, upon a trial of the cause affirmed the decree appealed from; but on June 2d of that year, upon motion of the executor and suggestion of the death of Thomas Holt and the appointment of an administrator of his estate, the decree of affirmance was vacated, Grant Holt substituted as contestant, and the decree of the county court reaffirmed. From this latter decree the executor attempts to appeal, and relies upon the following certificate, indorsed upon the notice of appeal, as the method of obtaining jurisdiction, to wit: "Due service of the within notice and receipt of a copy thereof admitted, this 15th day of September, A.D.1897, at Oregon City, Oregon. A.S. Dresser, of Attorneys for Contestant." Grant Holt, appearing by A.M Cannon, his attorney, moves to dismiss the appeal, contending that the death of Thomas Holt revoked the retainer of, and discharged, Dresser as one of his attorneys and, not having been retained by Grant Holt, the latter is not bound by the admissions or appearance of Dresser in his behalf, and that the certificate relied upon is insufficient to confer jurisdiction. It appears from affidavits on file that Thomas Holt retained counsel residing in Linn county, and they engaged Mr. Dresser, an attorney of Clackamas county, who assisted at the trial of the cause in the county and circuit courts. The decree of the latter having been given without knowledge of the death of Thomas Holt, upon the suggestion of that event Mr. Dresser, supposing he had authority to do so, appeared for Grant Holt, and consented to the several orders so made by the circuit court, and subscribed his name to the indorsement on the notice of appeal. The question presented challenges the jurisdiction of this court, the respondent contending that the provisions of the statute conferring it have not been observed.

Section 531, Hill's Ann.Laws Or., in prescribing the person upon whom and the manner in which notices shall be served provides that "when a party is absent from the state, and has no attorney in the action or suit, service may be made by mail, if his residence be known; if not known, on the...