Mason v. Pelkes

• Citation: 59 P.2d 1087,57 Idaho 10
• Decision Date: 23 July 1936
• Docket Number: 6328
• Parties: KATHERINE MASON and T. R. MASON, Her Husband, Respondents, v. JOHN PELKES, EVELYN H. TREINIES and SUNSHINE MINING COMPANY, Appellants
• Court: United States State Supreme Court of Idaho

59 P.2d 1087

57 Idaho 10

KATHERINE MASON and T. R. MASON, Her Husband, Respondents, v. JOHN PELKES, EVELYN H. TREINIES and SUNSHINE MINING COMPANY, Appellants

No. 6328

Supreme Court of Idaho

July 23, 1936

JUDGMENT-DEFAULT-RELIEF GRANTED-SETTING ASIDE OF DEFAULT-ORDER TO SHOW CAUSE-PLACE OF SIGNING-APPEAL AND ERROR-DISMISSAL, GROUNDS FOR-ATTORNEY AND CLIENT-NONRESIDENT ATTORNEYS-JUDGMENTS OF OTHER STATES-FULL FAITH AND CREDIT-LAWS OF OTHER STATES-JUDICIAL NOTICE-PROBATE COURT-JURISDICTION-DECREE OF DISTRIBUTION-APPEAL-TRUSTS-EVIDENCE.

1. Jurisdiction to enter a default is based on the fact of service of summons, not on the return which is evidence of it.

2. I C. A., sec. 5-905, which provides for setting aside defaults does not authorize granting such relief to a defendant who has been served with summons and has knowingly and intentionally failed to appear and answer within the time prescribed by law, and who has thereafter changed his mind and desires to answer because of changed conditions.

3. The relief granted to a plaintiff against a defendant in default for failure to appear or answer cannot exceed that prayed for in the complaint. However, only the part of a judgment or decree which is in excess of the relief prayed for is void and that only as against the defendant who is in default.

4. Orders to show cause and temporary restraining orders may be made ex parte and without notice, and may be signed by the judge anywhere in the state either within or without the county wherein the action is pending.

5. The power of the court to dismiss an appeal because of misconduct of parties litigant tending to obstruct the administration of justice questioned but not decided. Held, acts of certain appellants, in violation of injunctive orders of district judges, were performed pursuant to advice of their attorneys and that, even if power to do so exists in the court, the harsh remedy of dismissing their appeal will not be visited upon the litigants.

6. The privilege of appearing as counsel in our courts is granted to nonresident attorneys not as a right, but as a courtesy.

7. Article 4, sec. 1 of the Constitution of the United States which requires that full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, does not preclude inquiry into the jurisdiction of the court in which a judgment was rendered, or into the facts necessary to give it jurisdiction; nor are the courts of a state required to give full faith and credit to a judgment rendered by a court of another state which had no jurisdiction of the subject-matter or of the parties.

8. This court will not take judicial notice of the laws of another state, and unless they are pleaded and admitted or proved they will be presumed to be the same as those of Idaho.

9. Assuming the laws of a foreign state are the same as those of Idaho governing courts in the exercise of their probate jurisdiction, a court of that state, having entered a decree distributing all the property in the hands of an executor to the beneficiaries of a will, in undivided interests, was without jurisdiction to thereafter determine whether such property was impressed with a trust created by agreement between the distributees, entered into after distribution and an attempted adjudication by that court as to the existence of the trust is not res judicata of that question in a suit pending in Idaho to establish the trust.

10. A decree in probate, distributing an estate, is a final adjudication, subject to appeal, of the rights of the distributees to receive the property awarded to them, but a court of probate has not jurisdiction to decide questions of title to the property distributed, arising out of contracts between the distributees after the decree is entered.

11. When property of an estate of a person who died testate has been distributed according to the terms of the will to those entitled thereto in undivided interests and they thereafter, by agreement free from fraud and mistake, divide it, their agreement as to the division is controlling.

12. Evidence held sufficient to sustain finding that mining stock distributed by decree of distribution was held in trust by husband of testatrix for her daughter and was transferred by him, to one having knowledge of the trust, in violation of it.

(Syllabus by author of opinion.)

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. Miles S. Johnson, Presiding Judge.

Suit to impress mining stock with a trust, and for a decree that it had been transferred by the trustee in violation thereof; to restrain payment of dividends on the stock and for an accounting and judgment for amount of dividends theretofore paid. Default of defendant, mining company, for failure to appear and answer, was entered. Motion to set aside default denied. Order denying it affirmed. Decree granting injunctive relief; awarding to Katherine Mason a portion of stock claimed by her, and that plaintiffs were entitled to dividends paid on such portion subsequent to commencement of action. Modified.

Remanded with direction. Costs awarded to respondents. Petition for rehearing denied.

H. J. Hull, for Appellants Pelkes and Treinies.

Where administration is necessary, or the aid of the courts has been sought for the settlement of a testator's estate, no title passes under a bequest of personal property until the will has been probated, the administration of the estate has been completed, and distribution to the legatees ordered. (1 Woerner on Administration, 2d ed., secs. 15, 16; 23 C. J., p. 1127, sec. 319, p. 1172, sec. 390; 24 C. J., pp. 201, 202, sec. 710, p. 750, sec. 1850; United States v. Jones, 236 U.S. 106, 112, 35 S.Ct. 261, 59 L.Ed. 488; Devereaux v. Anderson, 146 Wash. 657, 264 P. 422, 423; Collins v. Northwest Casualty Co., 180 Wash. 347, 351, 39 P.2d 986, 97 A. L. R. 1235; Bishop v. Locke, 92 Wash. 90, 92, 158 P. 997.)

Where a decedent's estate is to be administered in a probate court, the obligation of the administering officer is not ended until he has distributed the property of the estate in accordance with the requirements of the decree of distribution, has obtained receipts from the beneficiaries for such property, and has reported his action to the probate court. The court's duty is not completed until it has examined the receipts and the actions of the administering officer, and has found that distribution has been made as ordered or made in a satisfactory manner to all in interest. When it has so found, then it is its duty to close the estate and discharge the administering officer. Until all those things are done the probate court's jurisdiction over the estate continues. (McLaughlin v. Barnes, 12 Wash. 373, 41 P. 62; State v. Superior Court, 13 Wash. 25, 42 P. 630; In re Dyer's Estate, 161 Wash. 498, 297 P. 196.)

The judicial proceedings in Washington "shall have such faith and credit given them in every court within the United States as they have by law or usage in the courts of the State from which they are taken." (U.S.C. A., Title 28, sec. 687.) If the superior court for Spokane county had jurisdiction of the parties and subject matter, its action was not vitiated by any error it may have committed in its proceedings or judgment. (Dare v. Hall, 141 Wash. 389, 250 P. 106.) No matter how grossly erroneous its judgment may be thought to be under the laws of Idaho, it must nevertheless be given the same faith and credit it would be given in the courts of Washington. (Fauntleroy v. Lum, 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed. 1039; Roche v. McDonald, 275 U.S. 449, 48 S.Ct. 142, 72 L.Ed. 365.)

James E. Gyde, James E. Gyde, Jr., and Jess B. Hawley, for Appellant Sunshine Mining Company.

The default entry of the clerk was null and void for the reason the clerk had no evidence before him at time of entering default of a legal service upon the defendant Sunshine Mining Company for the reason that the return of the sheriff, which was the only evidence the clerk had before him of such service, did not show a legal service on the defendant Sunshine Mining Company, a foreign corporation, because said return simply showed service on J. B. Cox, the "Assistant Treasurer of said corporation," and the court should have granted said defendant's motion to vacate the default and to file its answer. (I. C. A., sec. 5-507, subd. 2; Applington v. G. V. B. Min. Co., 6 Idaho 216, 55 P. 241; Reinhart v. Lugo, 86 Cal. 395, 24 P. 1089, 21 Am. St. 52; Bowers v. Dickerson, 18 Cal. 420.)

Walter H. Hanson, F. C. Keane, Lester F. Harrison and Cox & Ware, for Respondents.

When a decree of distribution is entered the probate court loses jurisdiction except to enforce the decree. (Prefontaine v. McMicken, 16 Wash. 16, 47 P. 231.) An application to vacate a default must be made speedily and the statutory provision of six months is the maximum time within which such application can be made and entertained. (Savage v. Stokes, 54 Idaho 109, 28 P.2d 900; Hanson v. Rogers, 54 Idaho 360, 32 P.2d 126.)

MORGAN, J. Givens, C. J., and Budge, Holden and Ailshie, JJ. , concur.

OPINION

MORGAN, J.

This suit was commenced August 4, 1934, by Katherine Mason and T R. Mason, her husband, against John Pelkes, Evelyn H. Treinies, Frances Thinnes and Pierre Thinnes, her husband, and Sunshine Mining Company, to procure a decree adjudging 15,299 shares of capital stock of the mining company to have been held by Pelkes in trust for Katherine Mason prior to his transfer of it to Treinies, Thinnes and his wife; that the transfers were fraudulent and without consideration and in violation of the trust; that the defendants, other than the mining company, be enjoined from selling or otherwise...