Leonhart v. District Court of Thirteenth Judicial Dist. In and For Sedgwick County, 18429

• Decision Date: 07 July 1958
• Docket Number: No. 18429,18429
• Citation: 329 P.2d 781,138 Colo. 1
• Parties: George D. LEONHART, as Executor of the Estate of Harry A. Weston, Deceased, Petitioner, v. The DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT IN AND FOR THE COUNTY OF SEDGWICK, State of Colorado, and Elvin Emery Bushnell, Respondents.
• Court: Colorado Supreme Court

Page 781

329 P.2d 781

138 Colo. 1

George D. LEONHART, as Executor of the Estate of Harry A.

Weston, Deceased, Petitioner, v. The DISTRICT COURT OF THE THIRTEENTH JUDICIAL DISTRICT IN AND FOR THE COUNTY OF SEDGWICK, State of Colorado, and Elvin Emery Bushnell, Respondents.

No. 18429.

Supreme Court of Colorado, En Banc.

July 7, 1958.

Rehearing Denied Sept. 29, 1958.

G. E. Hendricks, Julesburg, Wilbur M. Alter, Denver, for petitioner.

Vincent Cristiano, Robert Bugdanowitz, Denver, and H. Vance Austin, Sterling, for respondent Elvin Emery Bushnell.

FRANTZ, Justice.

By an original proceeding for writ in the nature of prohibition, George D. Leonhart, as executor of the estate of Harry A. Weston, deceased, seeks an order from this court restraining and prohibiting the District Court of the Thirteenth Judicial District in and for Sedgwick County, Colorado, and Elvin Emery Bushnell, from continuing further with a caveat and objections filed against the last will and codicil of the deceased in ancilary probate proceedings.

Weston died on or about July 12, 1955, testate, and his will and codicil were admitted to probate by the County Court of Henry County, Illinois, on August 26, 1955. Leonhart was nominated by said testamentary instruments to be the executor, and pursuant thereto was appointed by the court and thereafter qualified.

Notice of the probate proceedings in Illinois was served on Bushnell by mail at his residence in the State of Washington. He did not appear for the hearing, and the County Court of Henry County, Illinois, determined the will to be a valid one.

Leonhart thereafter sought ancillary administration of said estate in Sedgwick County, and on September 6, 1955, the County Court of Sedgwick County, Colorado, admitted said will and codicil to probate and record and appointed Leonhart as executor.

On November 7, 1955, Bushnell filed his caveat and objections in the County Court of Sedgwick County, alleging that Weston was a resident of Colorado and not of Illinois, was incompetent to make a will at the time of the execution thereof, and was subject to undue influence in the execution of said will.

Bushnell was unsuccessful in the County Court of Sedgwick County and appealed the adverse judgment to the District Court thereof. Before trial in the District Court, Bushnell withdrew his contention that Weston at the time of his death was a resident of the State of Colorado. Upon the withdrawal of this contention, Leonhart moved for a summary judgment on the theory that the other questions had been resolved inimically to Bushnell by the County Court of Henry County.

After the motion for summary judgment was denied, the matter went to trial before a jury. At the conclusion of the trial the jury was unable to reach an agreement. It is the retrial of this cause which Leonhart seeks by this action to have restrained and prohibited.

Five reasons are asserted for this court's assuming jurisdiction: (1) the full faith and credit clause of the Federal Constitution makes conclusive the determination of the Illinois court, and (2) the determination of the Illinois court is res judicata as to the questions raised in the Colorado courts, wherefore the Colorado courts are divested of jurisdiction to hear and determine the caveat; (3) a retrial of the issues presented by the caveat, already bindingly adjudicated by the Illinois court, would entail extraordinary, unnecessary expense to Sedgwick County, and (4) to the estate in requiring witnesses to be brought from after to testify in the case; (5) by reason of the conclusive determination by the Illinois court, the eventual success of Leonhart is assured, even if he is required to take the route of a writ of error.

Article VI, Section 2 of the Constitution of Colorado reposes in the Supreme Court 'a general superintending control over all inferior courts, under such regulations and limitations as may be prescribed by law.' Article VI, Section 3 empowers the Supreme Court 'to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and other remedial writs, with authority to hear and determine the same.'

Our authority to entertain remedial writs is conferred by the Constitution, and 'is not dependent upon, or governed by the statute' or rules of civil procedure on the subject. People ex rel. Lindsley v. District Court, 30 Colo. 488, 71 P. 388. 'Those writs, however, are the common law writs * * *.' Bulger v. People, 61 Colo. 187, 156 P. 800, 803.

Even under the Rules of Civil Procedure the substantive aspects of remedial writs are preserved, and relief of the same nature as was formerly provided in such proceedings may be granted in accordance with precedents established under the old practice. North Poudre Co. v. Hinderlider, 112 Colo. 467, 150 P.2d 304; Hall v. Denver, 117 Colo. 508, 190 P.2d 122.

Prohibition is a preventive proceeding, Leonard v. Bartels, 4 Colo. 95; People ex rel. Dougan v. District Court, 6 Colo. 534, prerogative in character, i. e., not grantable ex debito justitiae. Leonard v. Bartels, supra; McInerney v. Denver, 17 Colo. 302, 29 P. 516. It lies to prevent an inferior tribunal, whether it have judicial or quasi-judicial powers, from usurping a jurisdiction with which it is not legally vested. Whether the superior tribunal should act in the premises rests in its sound discretion; thus, the remedy afforded is not one of right. People ex rel. Zalinger v. County Court, 77 Colo. 172, 235 P. 370.

Corrective measures are not within the sweep and coverage of prohibition; correction of error is the function of a writ of error. A trial court has the power to render a right as well as a wrong decision. 'Prohibition may...