In re McLeod's Estate

• Decision Date: 16 May 1933
• Citation: 21 P.2d 1084,143 Or. 233
• Parties: In re McLEOD'S ESTATE. v. GRAHAM, County Judge. COCKRUM
• Court: Oregon Supreme Court

21 P.2d 1084

143 Or. 233

In re McLEOD'S ESTATE.

COCKRUM v. GRAHAM, County Judge.

Supreme Court of Oregon

May 16, 1933

In Banc.

Appeal from Circuit Court, Malheur County; W. W. Wood, Judge.

Petition by Harry B. Cockrum, administrator of the estate of Donald McLeod, deceased, against David F. Graham, as County Judge of Malheur County, State of Oregon. From a judgment for petitioner, defendant appeals, and petitioner moves to dismiss the appeal.

Motion to dismiss granted.

Robert D. Lytle, of Vale, for appellant.

P. J Gallagher and George B. Guthrie, both of Portland, for respondent.

ROSSMAN Justice.

This cause is before us on motion to dismiss the appeal. We shall state in chronological order the events which finally culminated in this motion: December 13, 1920, one Donald McLeod, a resident of Malheur county, died, leaving an estate in that county; December 19, 1929, Harry B. Cockrum respondent in this appeal, was appointed administrator of McLeod's estate, and, after qualifying, proceeded to discharge the duties of his office; April 17, 1930, one Susan R. Roethler presented a petition for the probate of what purported to be a copy of a lost will of McLeod. Hon. H. Lee Noe, who was then judge of the county of Malheur county after a hearing, entered an order holding that the instrument so offered for probate was not a lost will of McLeod. No appeal was taken from this order, but on February 24, 1931, the same Susan R. Roethler, who by that time had become Susan R. Hart, appeared again before the county court of Malheur county, this time as guardian of Margaret Roethler, a minor, and presented for probate another copy of the alleged lost will of McLeod. It was offered for probate in common form, and on September 2, 1931, Hon. David F. Graham, successor to Judge Noe, entered an order admitting the instrument to probate as the will of McLeod. This instrument was identical to the one which Judge Noe had rejected, and the testimony in its support was the same as that offered in support of the other copy. October 21, 1931, the administrator filed in the circuit court for Malheur county a petition for a writ of prohibition in which he alleged the foregoing facts and prayed for a writ "commanding said county court for Malheur County, Oregon, to desist from any further proceedings in said matter and for such other and further relief as to the court may seem meet and proper." After a demurrer had been sustained to the petition, the administrator, to whom we shall hereafter refer as the plaintiff, filed an amended petition. In it he alleged that on November 19, 1929, he was appointed administrator of the estate of Donald McLeod; that April 17, 1930, a petition was filed in the county court for Malheur county by Susan R. Roethler for the probate of what was represented to be a copy of a lost will of McLeod; that H. Lee Noe who was then county judge, after a hearing, entered an order on April 21, 1930, finding that "said purported copy of the said lost will so offered for probate was not the last will and testament of said Donald McLeod, deceased, and by said order denied the admission to probate the said purported lost will"; that no appeal or writ of review was prosecuted from said order; that February 24, 1931, the same Susan R. Roethler filed a petition as guardian of Margaret Roethler, a minor, for the probate of the identical will mentioned above; that no notice was given to the administrator of that fact; that the subsequent hearing was conducted ex parte; that the administrator had no opportunity to be heard upon the application of Susan Roethler to establish the said will; that September 2, 1931, the county court made "a pretended and purported order admitting the pretended will to probate as, and finding the same to be, the last will and testament of the said Donald McLeod, deceased"; that Susan Roethler who filed the second petition was the same Susan Roethler who filed the first. We now quote from the amended petition the following:

"That by reason of the order of the county court made and entered on the 21st day of April, 1930, and denying said will to probate, and by reason of the fact that said order was not appealed from or reviewed, and by reason of the fact that said order became final, all matters and things looking towards the probate of the same will, upon the petition of any of the other devisees named therein, become res adjudicata and final, and that by reason of said order of April 21, 1930, the county court for Malheur County exhausted all of its jurisdiction to hear or determine any other or further petition to probate, or admit to probate, the same purported will, and that said order of the county court for Malheur County so made on the 21st day of April became final and binding upon all of the devisees named in said purported will and upon the heirs, executors and all persons claiming by, through or under them; that by reason thereof the said county court by thus exhausting its jurisdiction in said matter lost all further jurisdiction to again hear *** and that said purported order of the second day of September, 1931, was null and void."

The amended petition, continuing, alleges that the county court was proceeding to probate said will and intended to appoint some person other than petitioner as the executor of the estate; that the appointment of some other individual would render it impossible for the petitioner, as administrator, to perform his duties. It next alleged:

"That petitioner has no speedy or adequate remedy by appeal or otherwise for the reason that under the statute permitting appeals the right of appeal is limited to parties to the proceeding, and inasmuch as a proceeding in which said purported will was admitted to probate was an ex parte proceeding, petitioner has had no opportunity to be heard or to become a party thereto and is, therefore, in no position to appeal from said order, and that petitioner has no remedy by writ of review for the same reason that the statute regulating the issuance of a writ of review limits the right to petition therefor to those who were parties to the proceeding in the court below, and that the remedy by contest of said purported will is not speedy or adequate for the reason that it necessarily involves questions of fact, whereas the question attempted to be raised by this petition is a question of law purely and should be determined in this proceeding, and if determined in accordance with this petition will obviate the necessity of a long and expensive will contest."

The petition concluded with a prayer that the defendant "show cause, if any he may have, why this court should not make and issue a peremptory writ of mandamus directing and commanding the said David F. Graham, as county judge for Malheur County, to recall and set aside the order heretofore made on September 2, 1931, permitting the probate of said will and commanding him, the said David F. Graham, as county judge for Malheur County, to make and enter an order dismissing with prejudice the petition of the said Susan R. Hart, as guardian of the estate of Margaret Roethler, a minor, for the probate of said will, and commanding and directing the said David F. Graham, as county judge of Malheur County, to refuse to take jurisdiction or to make any order concerning or permitting the probate of said purported last will and testament of Donald McLeod which is herein described, and for such other and further relief as may seem meet and proper to this court, including the costs and disbursements of the petitioner herein."

Thereafter an alternative writ of mandamus issued. Still later the defendant filed a demurrer to the petition which was overruled. Later the defendant filed an answer to the amended petition in which he admitted substantially all of its allegations. July 25, 1932, the plaintiff filed a demurrer to the answer predicated upon the contention that the answer did not state facts sufficient to show cause why the writ of mandamus should not issue. August 11, 1932, the circuit court entered an order of which the following is a copy:

"Now on this day this cause came on regularly for hearing before the judge of this court on the demurrer of Harry B. Cockrum *** and the court having read the said answer and demurrer, and considered the same in the light of arguments heretofore made, and being at this time fully advised as to all matters of law in regard to the same, and it appearing to the court that the same demurrer is well taken, and that the same should be sustained; now, therefore, it is hereby ordered, adjudged and considered that the said demurrer be and the same is hereby sustained; and it further appearing that the said David F. Graham refuses to further plead in said matter, it is, therefore, hereby further ordered, adjudged and considered that a peremptory writ of mandamus be and the same is hereby granted and allowed as prayed for in the petition of said administrator, and that petitioner have and recover his costs and disbursements to be taxed."

The above was followed by the signature of the circuit judge. August 16, 1932, plaintiff's attorney prepared and delivered to the circuit judge an appropriate form for a peremptory writ of mandamus, requesting his signature thereto; August 30, 1932, he served and filed his cost bill November 3, 1932, he received from the defendant's attorney a notice of appeal and an undertaking on appeal, the originals of which were filed in the office of the clerk of the circuit court November 3, 1932. At the same time defendant's attorney requested the clerk of the circuit court to prepare a transcript of the record in that court of this cause. November 18, 1932, defendant's attorney filed in this court a motion requesting the...