In re Skelly's Estate

• Decision Date: 29 August 1907
• Citation: 113 N.W. 91,21 S.D. 424
• Parties: In re SKELLY'S ESTATE.
• Court: South Dakota Supreme Court

113 N.W. 91

21 S.D. 424

In re SKELLY'S ESTATE.

Supreme Court of South Dakota

August 29, 1907

Appeal from Circuit Court, Lawrence County.

Anna Skelly filed a petition in the county court asking for the appointment of a person therein named as administrator of the estate of her deceased husband. A creditor having also filed his petition asking for the appointment of a person therein named as administrator, an order was entered granting the petition of Anna Skelly, and such creditor appealed to the circuit court, where the order of the county court was affirmed. From a subsequent order of the circuit court vacating and modifying its order of affirmance, Anna Skelly appeals. Affirmed.

Fuller P. J., dissenting.

Henry Frawley and J. M. Hodgson (Gaffy & Stephens, of counsel), for appellant.

R. C Hayes, A. J. Plowman, Martin & Mason, J. W. Fowler, Samuel C Polley, McLaughlin & Ogden, T. L. Redlon, and T. E. Harvey for respondents.

CORSON J.

This is an appeal by Anna Skelly, who claims to be the widow of John H. Skelly, deceased, from an order made by the circuit court of Lawrence county on January 2, 1907, vacating and setting aside a judgment of said court rendered on April 28, 1906.

It is disclosed by the record that on October 24, 1903, one John H. Skelly died intestate in Lawrence county. That on the 2d of February, 1904, the said Anna Skelly filed a petition in the county court of Lawrence county for letters of administration on the estate of said Skelly. That thereafter one Charles H. Robinson, a creditor of the deceased, filed a petition asking that letters of administration be issued to William L. McLaughlin. That such proceedings were had; that on the 7th day of March, 1904, the county court made the following order: "The petition of Anna Skelly praying for letters of administration of the estate of John H. Skelly, deceased, be granted to Joseph M. Rickel, a competent person, coming on regularly to be heard, and due proof having been made to the satisfaction of this court that due notice had been given in all respects according to law, and all and singular the law and the evidence, by the court understood and fully considered, whereupon it is by the court here adjudged and decreed that the said John H. Skelly died on the 24th day of October, 1903, intestate, in the city of Deadwood, county of Lawrence, that he was a resident of Lawrence county, S. D., at the time of his death; and that he left estate in the county of Lawrence and within the jurisdiction of this court, it is ordered that letters of administration of the estate of said John H. Skelly, deceased, issue to the said Joseph M. Rickel, upon his taking the oath and filing a bond according to law, in the sum of $500." That from this order the petitioner, Robinson, apto the circuit court of Lawrence county. That on the 28th day of April, 1906, the circuit court entered a judgment affirming the order of the county court, and in addition thereto adjudged that Anna Skelly was the widow of said John H. Skelly, deceased, and adjudged that certain persons therein named were the sole heirs of the said Skelly, and directed that all the real and personal property of said Skelly, deceased, lying and being in said county, subject to the debts of said Skelly and costs and expenses of administration, be divided between the persons so named and found to be the heirs as follows, viz., an undivided one-half of the same to the said Anna Skelly and the remaining one-half to be divided among the persons therein named. The judgment concluded as follows: "And it is further ordered that the estate of the said John H. Skelly, deceased, be distributed by the county court of Lawrence county, S. D., in accordance with this judgment." The case was then returned to the county court for further proceedings in said county court, and thereafter, to wit, on the 21st day of August, 1906, the said administrator filed a petition in said court stating that no proof of heirship had ever been submitted, that said estate was ready for distribution, and asking the court to fix the time when such proofs of heirship to the estate should be presented to the court. Upon this petition the court made an order fixing the 1st day of November, 1906, as the day upon which evidence as to heirship might be submitted to the court; and thereafter, on the 18th day of October, 1906, Edward L. McGinnis and others, by their attorney, filed petitions in said county court alleging themselves to be the next of kin and heirs at law to said Skelly, and praying that the said estate be distributed among them. Said counsel for petitioners called the attention of the said county court to said judgment, whereupon the said county court upon its own motion on the 30th day of October made an order directing that the judgment of the circuit court of April 28th be returned to that court in order that certain matters therein might be corrected. Said judgment was accordingly returned to the circuit court, and on the 20th of November, 1906, that court issued an order directing the said Joseph M. Rickel, administrator as aforesaid, the attorneys of the parties on said appeal, and the heirs at whose request said judgment of April 28th had been rendered, to show cause why said judgment should not be vacated and set aside and a new judgment entered nunc pro tunc affirming the order of the county court of Lawrence county made on the 7th day of March, 1904.

In pursuance of this order to show cause, the court made the order appealed from, which is as follows: "This matter coming on to be heard, upon the motion and application of certain alleged heirs at law of John H. Skelly, deceased, to set aside and vacate an order entered herein on April 28 1906, for the reason that said order contains certain matters as to heirship of said estate and as to the distribution thereof which were not properly before the court, and upon which no evidence was taken and of which this court had no jurisdiction, *** and it appearing to the satisfaction of the court that said order was entered solely upon the stipulation of *** attorneys for a part only of those who claim to be interested in said estate, that no evidence was adduced or heard pertaining either to heirship of said estate or to the final distribution thereof prior to the said order, that the said order embraced matters as to heirship and final distribution which were not before the court and of which this court had no jurisdiction, the court not having read or heard read the said order, and not having known of the matters and things therein contained, and it further appearing that this matter was before this court solely upon an appeal...