In re Barrett's Estate
| Decision Date | 03 March 1914 |
| Docket Number | 750 |
| Citation | 22 Wyo. 281,138 P. 865 |
| Parties | IN RE BARRETT'S ESTATE. v. BARRETT BARRETT |
| Court | Wyoming Supreme Court |
Original Opinion of March 3, 1914, Reported at: 22 Wyo. 281.
Petition for rehearing denied.
T. S Taliaferro, Jr. and M. E. Wilson, for defendant in error, on petition for rehearing.
A proceeding in error from an order of the District Court appointing an administrator is not authorized by law. (State v. Reddish, (Mo.) 129 S.W. 53; Grover v Fowler, (Mo.) 18 S.W. 968). There can be no new trial of the case and the motion for new trial raised no question. Quist v. Hill, 154 Cal. 748, 99 P. 204; Sheets v. Henderson, 77 Kan. 761, 93 P. 577; Antonioli's Est., (Mont.) 111 P. 1033). Therefore, a proceeding in error based upon the assignment that the court erred in overruling James Barrett's motion for a new trial is of no force. The application of Patrick as well as that of James was denied. Either James or Patrick might apply to this court for a writ of mandamus to compel his appointment, or the appointment of both, but James can obtain no benefit from his motion for a new trial, or a proceeding in error. The petition in error should therefore be dismissed, since the sole assignment of error based upon the overruling of the motion for new trial is insufficient. The three petitioners for the appointment of Patrick Barrett at all times objected to the appointment of James, and if there was any withdrawal of their petition it was solely upon the condition that Mary be appointed. Such withdrawal cannot inure to the benefit of James. Patrick Barrett is not a party to this proceeding in error, and his right as between himself and James should not have been adjudicated. All of the four children were parties to the proceeding, and this proceeding in error cannot be prosecuted without making each of them a party. (2 Woerner on Adm., 1201; Jones v. Marsh, 30 O. St. 20; Smelter v. Rainey, 14 O. St. 287; Veach v Kerr, 41 O. St. 179). If jurisdiction of the proceeding is to be entertained, and the judgment reversed, the cause should be remanded either for a new trial or with directions to appoint either Patrick or James, or both. Patrick's assent to Mary's appointment ought not to deprive him of his right to object to the appointment of James. The case having been developed along a line held to be erroneous a reversal should not be accompanied by a direction for a particular judgment. (Allen v. Anderson, (Tex.) 96 S.W. 54; New v. Village, (N. Y.) 52 N.E. 647; Lopez v. Rowe, (N. Y.) 57 N.E. 501; McDonald v. McDonald, 16 Vt. 630; Braggins v. Holekamp, (Tex.) 68 S.W. 57; Robson v. Hamilton, (Ore.) 69 P. 651; Min. Co. v. Min. Co., 25 Utah 282; City v. Cornell Univ., 118 F. 379; Allen v. Parmelee, 142 F. 354; Call v. Call, (W. Va.) 40 S.E. 380; Kannawha Dispatch v. Fish, (Ill.) 76 N.E. 352; Boulare v. Newton, 18 Gratt. 708; McRea v. McWilliams, 58 Tex. 328; Walker v. Page, 21 Gratt. 636; Tod v. Stanbaugh, 37 O. St. 469; Bowlby v. Dewitt, (W. Va.) 34 S.E. 919).
ON PETITION FOR REHEARING.
A petition for rehearing has been filed in this case by the defendant in error. The proceeding in this court is to review an order denying the petition of James Barrett, a son of Mary Barrett, deceased, for his appointment as administrator of the estate of said decedent, and granting letters of administration to Mary Barrett, a daughter of the decedent. At the former hearing it was ordered that the cause be remanded with directions to vacate the appointment of Mary and to appoint James administrator upon his qualifying according to law. (138 P. 865). Two petitions for administration of the estate had been filed; the first by James Barrett, the plaintiff in error, praying that he be appointed administrator, and the second by the other children of the decedent praying the appointment of Patrick C. Barrett, one of the petitioners. Upon the hearing the District Court found that neither James nor Patrick C. was incompetent, but that Mary Barrett was more competent than either of them to handle the estate, by reason of her education, business ability and experience, and it was ordered that she be appointed. At the suggestion of the court when announcing its conclusions, as shown by the former opinion, Mary thereafter filed a petition for her appointment, and without any further hearing letters were issued to her upon the order aforesaid. This court held that it was error to deny the applications of James and Patrick C. when both were found to be competent, and that one of them, or both, should have been appointed.
The grounds upon which a rehearing is asked are substantially as follows: (1) That an order appointing an administrator is not reviewable in this court on error. (2) That if such an order should be held reviewable, there is nothing here to consider, for the reason stated in the brief filed in support of the petition that it is assigned as error only that the court erred in overruling the motion for new trial, and that such a motion was improper because the finding that both of the two petitioners were competent left no issue of fact to be re-examined. (3) That there is a defect of parties in this court, in that Patrick C. Barrett is not made a defendant in error, and that the court is without jurisdiction to adjudicate his right to the appointment. These questions are raised for the first time by the petition for rehearing, but so far as they relate to the jurisdiction of the court to consider the cause, or to dispose of it by directing the appointment of James, they may and should, we think, be considered, although not discussed or suggested in the brief upon the former hearing. (Ry. Co. v. New Albany &c. Co., 48 Ind.App. 647, 96 N.E. 28; Walter Box Co. v. Blackburn, (Tex. Civ. App.) 157 S.W. 220; State v. Sexton, 11 S.D. 105, 75 N.W. 895).
It is not clear that the point made with reference to the sufficiency of the assignments of error to present any question for review should be considered when suggested for the first time on a petition for rehearing. But counsel for defendant in error are mistaken as to the errors assigned by the petition in error, for it is not true that the only assignment is that the court erred in overruling the motion for new trial. That is the tenth assignment of error. We find in the petition in error nine other separate assignments; and under the first three general assignments, respectively, we find statements of several grounds in support thereof in separately numbered paragraphs. The first assignment of error alleges irregularity in the proceedings of the court by which the plaintiff in error was prevented from having a fair hearing in the matter before the court; and under that assignment to show irregularity it is alleged among other things that no petition was filed for the appointment of Mary Barrett; that plaintiff in error was given no opportunity to file objections to her appointment, or to question her competency; that said appointment was made without notice to the plaintiff in error, and was a departure from the established procedure governing the appointment of administrators; that the court was without jurisdiction to make said appointment; that it was made without due process of law; and was not warranted by the pleadings before the court upon the hearing, but the appointment was irregular and void, and an abuse of discretion. The second assignment complains of errors of law in two stated particulars with reference to the admission and rejection of evidence upon the hearing. The third assignment is to the effect that the court erred in several particulars, among them the following: In denying the petition of James Barrett; in appointing Mary Barrett; and in not finding the plaintiff in error to be best entitled to letters of administration. The fourth assignment is to the effect that the findings, decision and judgment of the court are outside the issues and unwarranted by the pleadings. The fifth, that the findings, decision and judgment are not sustained by the pleadings. The sixth, that the findings, decision and judgment are not sustained by sufficient evidence. The seventh, that the decision appointing Mary Barrett is contrary to law. The eighth and ninth, that the decision and judgment are contrary to law. It cannot seriously be contended, we think, that these assignments are insufficient to raise the question of the regularity of the appointment of Mary Barrett upon the issues before the court upon the hearing, or the authority or jurisdiction of the court to make that appointment. But if the question might be debatable, and could properly be raised for the first time on petition for rehearing we do not feel called upon to discuss it further, since the argument of counsel is based upon a misconception of what is assigned as error.
That a party has the same right to appeal from a judgment or final order of the District Court in probate matters as in civil actions--that is by proceeding in error--unless as to a particular matter he is deprived of that right by some express provision of the statute, was declared by this court in Weidenhoft v. Primm, 16 Wyo. 340, 94 P. 453. It was held that such right of appeal was granted by the following provisions of the probate code, which appeared in the...
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