In re Stinger's Estate
| Decision Date | 24 October 1921 |
| Docket Number | 4477. |
| Citation | 201 P. 693,61 Mont. 173 |
| Parties | IN RE STINGER'S ESTATE. v. KEITH. STINGER ET AL. |
| Court | Montana Supreme Court |
Appeal from District Court, Missoula County; Asa L. Duncan, Judge.
Petition by J. M. Keith for order directing payment of claims by Andrew Stinger, administrator of the estate of Louise Stinger, deceased. Petition denied, and from an order granting a motion for new trial, the administrator and other objectors appeal. Affirmed.
William Wayne and E. C. Mulroney, both of Missoula, B. K. Wheeler, of Butte, John P. Swee, of Ronan, and Frank Woody, of Billings for appellants.
Murphy & Whitlock and Thos. Marlowe, all of Missoula, for respondent.
Louise Stinger died November 25, 1905, and Andrew Stinger her widower, was appointed and qualified as administrator of her estate. Notice to creditors was given, and time for presentation of claims expired. Within the time limited for presentation of claims, J. M. Keith, as guardian of Eva May Allard and Louise Anna Allard, minors, presented two claims each in the sum of $7,000, and based upon a promissory note dated May 10, 1902, payable on demand to J. M. Keith guardian. These two notes were signed by Louise Stinger, decedent, Charles Allard, Andrew Stinger, and L. J. B. Jette. These claims were allowed by the administrator and approved by the judge of the court. On September 7, 1916, Keith filed a petition praying for an order of the court directing the administrator to pay to him personally these two claims, insisting that for reasons hereinafter stated he had become subrogated to the rights of the estate of the minor children as to the title to the notes and the claims. At that time all other claims had been paid, and there were more than sufficient funds with which to pay these claims. Formal objections, in the nature of answers, were filed to the allowance of this petition by the administrator officially, and also personally, by Leon Bishop, as guardian of the minor children of Louise Stinger, deceased, and by Eva May Allard as an heir at law of Louise Stinger, deceased. These several answers expressly deny the jurisdiction of the district court sitting in probate to grant the relief prayed for in the petition, for the reason that the right of the petitioner depends upon his claim of subrogation, which presents an issue that can be determined only by a court of equity. The answers also raise some issues of fact upon the merits. To these answers replies were filed by the petitioner. The matter came on for hearing before the court without a jury, evidence was taken in support of and in opposition to the petition, and decision was rendered by the court denying the petition on the sole ground that it did not have jurisdiction in that proceeding to determine the equitable claim of subrogation upon which plaintiff's petition was founded. A motion for new trial was granted, and appeal has been taken from the order by all the parties filing objections to the petition.
The assignments of error present two questions for determination: First, was a motion for new trial permissible in a probate proceeding of this kind? Second, if motion for new trial was permissible, was the order granting the new trial justified upon the merits?
It is urged by appellants that in a probate case of this kind a motion for new trial will not lie, because the petition was not disposed of by a determination of facts, but was disposed of solely upon a question of law; that a new trial is authorized only for the re-examination of issues of fact, and that in this case, the question involved being only an issue of law, there could not be a re-examination of issues of fact.
A new trial is defined by the Code as follows:
"A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees." Rev. Codes, § 6793.
A new trial may be granted on the application of the party aggrieved for the following causes, among others: (1) Insufficiency of the evidence to justify the verdict or other decision, or that it is against law; (2) error in law occurring at the trial and excepted to by the party making the application. Rev. Codes, § 6794. Under this statute it is evidently contemplated that a re-examination of the facts may be had when the court is satisfied that an error of law has been committed by reason of misapplication of the law to the facts, for if otherwise, how then could a new trial be granted because of insufficiency of the evidence, or because the decision is against law, or on account of error in law occurring at the trial, since these questions are purely law questions? This interpretation of the law has been made in a number of instances involving judgments of the court upon sustaining motion of defendant for nonsuit or motion for directed verdict. In each of these cases the decision is a determination of a question of law, and not a determination of a question of fact, but it has been held uniformly by this court that a motion for a new trial will lie in such cases. Old Kentucky Distillery v. Stromberg-Mullins Co., 54 Mont. 285, 169 P. 734; St. Paul. M. Mfg. Co. v. Bruce, 54 Mont. 549, 172 P. 330; Nelson v. Northern P. Ry. Co., 50 Mont. 516, 148 P. 388. The new trial involves a re-examination of the facts with opportunity to make a different application of the law to the facts if the court conceives that it has committed error in its former ruling.
Respondents misinterpret the situation when they contend that there is nothing in this case to review but a question of law. It is true that the court decided the case upon the law point that it did not have jurisdiction to grant the relief prayed for, but whether or not the review is a re-examination of facts does not depend upon the reason given by the court for its decision, but rather upon the question whether or not the pleadings as made present issues of fact. It has been determined by this court that--
"While the provisions of the Codes relative to new trials and appeals apply generally to probate proceedings (Rev. Codes, § 7712), controversies which do not arise upon written pleadings authorized or required by statute do not fall within them, because a 'new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees' (Rev. Codes, § 6793), and an issue of fact for the purpose of a trial arises upon formal pleadings (Rev. Codes, § 6723)." In re Antonioli's Estate, 42 Mont. 219, 111 P. 1033; State ex rel. Heinze v. District Court, 28 Mont. 227, 72 P. 613.
The real question, then, is whether or not an issue of fact is presented in this case upon formal pleadings authorized or required by the statute. If such issue of fact is thus raised, then a motion for new trial will lie; otherwise not.
In the title of the Code relating to probate proceedings appear the following sections:
Article 2, c. 2, referred to in section 7714, deals with contests of wills, and therefore, under this section, issues of fact must be tried in conformity with the requirements of the Code as to the contest of wills. This applies to all issues of fact joined in probate proceedings. If no jury is demanded, the court or judge must try the issues joined, and either party may move for a new trial upon the same grounds and errors, and in like manner as provided in the Code for civil actions. In this case, issues of fact were joined by formal pleadings consisting of the petition by Keith, the answers of the appellants and the reply by Keith. While not denominated complaint, answer, and reply, respectively, as in the trial of the ordinary civil action, nevertheless the pleadings are just as formal and just as effectual in presenting the issues of fact involved therein. The clear meaning of the probate statutes is that, when formal pleadings are filed presenting issues of fact, the parties should proceed to a formal trial, and, upon the determination of the issues of fact by the court, the aggrieved party may move for a new trial the same as in other cases.
Appellants contend that, by reason of the decisions of this court in the cases of In re Antonioli's Estate, and State ex rel Heinze v. District Court, supra, motion for new trial cannot be made in probate proceedings. In the former case two applications for letters of administration were heard together and issue was not joined in formal pleadings as to any fact alleged in either petition. Under these circumstances, the case would not come within...
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