In re Estate of McVay

• Decision Date: 08 January 1908
• Citation: 93 P. 28,14 Idaho 56
• Parties: In the Matter of the Estate of DAVID H. MCVAY, Deceased
• Court: Idaho Supreme Court

93 P. 28

14 Idaho 56

In the Matter of the Estate of DAVID H. MCVAY, Deceased

Supreme Court of Idaho

January 8, 1908

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Judgment of the lower court affirmed. Costs awarded to the respondent.

STEWART, J. Ailshie, C. J., and Sullivan, J., concur.

OPINION

STEWART, J.

A rehearing was granted in this case and the cause was argued orally, and all the questions presented by the appeal have been fully considered by the court. Counsel contend that the original opinion fails to pass upon a number of questions presented by the record, and that on other questions considered by the court a correct conclusion was not reached. We have, therefore, deemed it advisable to take up all the assignments of error and decide them. The facts are stated in the opinion delivered by Justice Sullivan.

When the cause reached the district court on appeal upon questions of both law and fact, a demurrer was filed to the petition asking that a homestead be set off to Americus J. McVay. This demurrer was sustained by the district court and permission was given the respondent to amend the petition by "paster slip." The record, however, shows that an amended petition was filed in the district court. No motion was made to strike the amended petition from the files, nor was any objection made to the amended petition on the ground that the same was not made or filed in accordance with the permission of the court. Just what an amendment by "paster slip" means, we are unable to say, but presume the court intended that the amendment might be pasted onto the original petition; but it is immaterial in this case just what an amendment by "paster slip" means, for the reason that an amended petition was filed.

The appellant assigns as error the action of the court in allowing the respondent to amend her petition in the district court. This assignment of error involves the question of raising new issues on appeal in the district court and of the amendment of pleadings. An examination of secs. 20 and 21, art. 5, of the constitution, discloses at once the fact that the framers of that instrument saw fit to classify "matters of probate, settlement of estates of deceased persons and appointment of guardians" as separate, distinct and aside from "cases at law and in equity," over which they gave the district court "original jurisdiction." It will also be seen from sec. 20 that "in all cases, both at law and in equity," from which they have clearly distinguished "matters of probate, settlement of estates of deceased persons, and appointment of guardians," the district court has "original jurisdiction," and that in all other matters which the legislature might provide for being heard in district courts, the jurisdiction should be solely "appellate." The words "original jurisdiction" and "appellate jurisdiction," as employed in sec. 20, are used in the clearest and most unequivocal contradistinction to each other. By sec. 21, the probate courts are given the sole and exclusive "original jurisdiction" in all matters of probate. As to those matters, the probate court is a court of record, to the judgment, records and proceedings of which, in such matters, absolute verity is attached in every respect as fully and completely as can attach to the records, judgments and proceedings of district courts or other courts of record. (Clark v. Rossier, 10 Idaho 348, 78 P. 358; In re Elmer and Alva Brady, 10 Idaho 366, 79 P. 75.) Under sec. 20, art. 5 of the constitution, the legislature is the sole and exclusive judge as to the extent and scope of the "appellate jurisdiction" that they will confer upon district courts. In other words, they may limit it to any case or class of cases, or subject matter they may see fit, or they may not grant any at all; but it was never intended by this or any other provision of the constitution that the legislature could circumvent the clearest provisions and intent of that instrument, by giving to the district court, under the guise of the right to try appeals, what amounts to an original jurisdiction to hear and determine matters of probate and settlement of estates of deceased persons.

It must be assumed that the legislature, when it passed the act of March 11, 1903 (Sess. Laws, 1903, p. 372), providing for a trial "de novo" in the district court, on appeal from the probate court, in probate matters, was acting within the purview of the constitution and did not intend to go any further than to provide for the exercise of the "appellate jurisdiction" of the district court. Proceeding upon that assumption, let us see what trial "de novo" means. It is defined in "Cyc." and Rapalje & L. L. Dictionary as "anew; a second time." In Paul v. Armstrong, 1 Nev. 82, the court, in considering the meaning of this term, said: "The statute says that, upon an appeal, the case shall be tried de novo in the appellate court. That is, as I understand it, in the same manner, with the same effect, and upon the issues tried in the court below." It would seem that the correct doctrine is stated by the Texas court of appeals in Ex parte Morales, 53 S.W. 107, wherein the court held that a trial "de novo" on appeal requires "that appeals be tried upon the original papers, and upon the same issues had below." It is axiomatic that a cause or an issue cannot be tried de novo that has never been tried. (Southern P. Co. v. Superior Court, 59 Cal. 471.) If there is no issue, there can be no case made. "Appellate jurisdiction," as used in sec. 20 of the constitution, is the direct antithesis of the words "original jurisdiction" in the same section. In the latest edition of Bouvier's Law Dictionary, the words "appellate jurisdiction" are defined as follows: "The jurisdiction which a superior court has to rehear causes which have been tried in inferior courts." Similar definitions are given in numerous cases reported from the courts. (See State ex rel. Williams v. Anthony, 65 Mo.App. 543; State v. Baker, 19 Fla. 19; In re Jessup's Estate, 81 Cal. 408, 22 P. 1028, 6 L. R. A. 594; Dodds v. Duncan, 80 Tenn. 731; People v. City of Chicago, 193 Ill. 577, 62 N.E. 196.) The very expression, "appellate jurisdiction," refutes and contradicts any idea of filing new pleadings and framing and settling issues in a court of such jurisdiction. The amendments of pleadings and filing new pleadings and joining issues suggest at once to the practitioner a court of "original jurisdiction" as the forum in which such practice and procedure is taking place. It is a practice and procedure not usually or ordinarily invoked or countenanced in courts exercising only appellate jurisdiction, and we are not prepared to believe that the framers of the constitution ever intended to use the phrase in any uncommon, unusual or extraordinary sense. Amendments should not be allowed in the district court on appeal from the probate court in a probate matter.

Sec. 3 of the act of March 11, 1903, supra, provides: "The appeal may be taken either upon questions of both law and fact. If taken upon questions of law alone, the district court may review any such question which sufficiently appears upon the face of the record or proceeding, without the aid of a bill of exception, but no bill of exceptions shall be allowed or granted in the probate court in probate matters. If the appeal be upon questions of both law and fact, the trial in the district court shall be de novo." That is, if the appeal is taken upon questions of law alone, the district court will review such questions of law as were raised in the probate court upon the record, but will not permit any new questions of law to be raised. If the district court sustains the appellant's views, then the judgment will be reversed and the probate court directed to proceed accordingly. If, however, the district court affirms the judgment of the probate court, then the same is certified back to the probate court with the decision thereon. If the appeal be taken upon questions of both law and fact, then the district court proceeds to try, first, the questions of law, and if the cause is reversed on questions of law, the questions of fact are not tried. If, however, the cause is not reversed on questions of law, then the same questions of fact as were tried in the probate court will be retried in the district court as other trials in said court are conducted. Witnesses may be called and may testify the same as in the trial of any other cause. In other words, this statute, under the constitution, grants to the district court appellate jurisdiction to retry only the same issues of law and fact as were heard and determined by the probate court. Whatever judgment may be entered in the district court is to be certified back to the probate court for execution in accordance therewith.

Appellant also contends that the petition filed in the probate court was insufficient, and did not state facts sufficient to entitle her to the relief asked for, or any relief; while respondent contends that the petition was sufficient and even goes to the extent of contending that petition to have a homestead set off to the widow is not necessary at all. Sec 5420, Rev. Stat., requires every executor or administrator to return to the court a true inventory and appraisement of all the estate of the decedent, including the homestead, if any. Sec. 5422 requires the appraisers to appraise the property embraced in the inventory. Sec. 5440 provides that "when a person dies, leaving a widow or minor children, the widow or children, until letters are granted and the inventory returned, are entitled to remain in possession of the homestead," etc. Sec. 5441 provides that "upon the return of the inventory, or at any subsequent time during the...