In re Barrett's Estate, 750

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtPOTTER, JUSTICE.
Citation22 Wyo. 281,138 P. 865
Docket Number750
Decision Date03 March 1914
PartiesIN RE BARRETT'S ESTATE. v. BARRETT BARRETT

138 P. 865

22 Wyo. 281

IN RE BARRETT'S ESTATE.

BARRETT
v.
BARRETT

No. 750

Supreme Court of Wyoming

March 3, 1914


22 Wyo. 281 at 290.

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).

POTTER, JUSTICE. SCOTT, C. J., and BEARD, J., concur.

OPINION

[22 Wyo. 290] ON PETITION FOR REHEARING.

POTTER, JUSTICE.

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 [22 Wyo. 291] 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...

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