Miller v. Mitcham

• Decision Date: 01 May 1912
• Citation: 21 Idaho 741,123 P. 941
• Parties: J. C. MILLER, Respondent, v. ARIZONA MITCHAM and ELIZABETH L. RILEY, Appellants
• Court: Idaho Supreme Court

123 P. 941

21 Idaho 741

J. C. MILLER, Respondent, v. ARIZONA MITCHAM and ELIZABETH L. RILEY, Appellants

Supreme Court of Idaho

May 1, 1912

APPEAL from the District Court of the Second Judicial District, in and for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action by plaintiff to quiet his title to certain real estate. Judgment for plaintiff and defendants appeal. Affirmed.

Judgment affirmed, with costs in favor of respondent.

George W. Tannahill, for Appellants.

The probate courts of this state have exclusive jurisdiction of the settlement of estates of deceased persons (Abrams v White, 11 Idaho 497, 83 P. 602; In re Doane's Estate, 64 Wash. 303, 116 P. 847), and their orders and judgments in regard to those matters cannot be attacked collaterally. (Clark v. Rossier, 10 Idaho 348, 3 Ann. Cas. 231, 78 P. 358; O'Neil v. Potvin, 13 Idaho 721, 93 P. 20, 257.)

Clay McNamee, and James L. Harn, for Respondent, cite no authorities on points decided.

AILSHIE J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This is an action to quiet title. The respondent is a brother to the appellants and the George W. Miller who figures in this case and to whom reference will hereafter be made, was the father of appellants and respondent. Some time about 1901, or subsequent thereto, respondent and George W. Miller located homestead and timber claims in the state of Washington, and finally acquired title thereto and subsequently sold their holdings for something like $ 4,900, but retained some livestock which they had accumulated. A portion of the money derived from the sale was subsequently invested by respondent in the property now in dispute, which property is situated in or near the city of Lewiston. On about the 29th day of January, 1909, George W. Miller died intestate, leaving surviving him the appellants and respondent as his heirs. At the date of his death he was about seventy-six years old, and had been rather feeble for a number of years, though able to assist about the place in taking care of livestock and the like. On about the 3d of February, 1909, the appellant, Arizona Mitcham, filed her petition to the probate court of Nez Perce county, praying that she be appointed as administratrix of the estate of her deceased father, George W. Miller. The petition for the appointment set forth a full and complete description of all the property which it was claimed belonged to the estate of the deceased, and included the property now in question, the title to which rested in the respondent, John Carlyle Miller. Respondent filed his protest against the appointment of Arizona Mitcham as administratrix and asked that he be appointed, claiming that under the provisions of the statute, secs. 5351 and 5352, of the Rev. Codes, he was entitled to preference over his sister in the appointment to administer the estate of his deceased father. The petitioner, Arizona Mitcham, insisted on her right to the appointment, and contested the right of her brother, John Carlyle Miller, to the appointment, on the ground that her father, George W. Miller, and her brother, John Carlyle Miller, were partners, and that under the provisions of sec. 5351, Rev. Codes, a member of a partnership is not entitled to appointment as administrator of the estate of the deceased partner. The probate court decided in favor of the petitioner, Arizona Mitcham, and appointed her as administratrix of the estate of her deceased father. An appeal was thereupon taken to the district court, and the judgment of the probate court appointing the sister was affirmed.

This appointment seems to have been made upon the theory that the respondent herein, John Carlyle Miller, was disqualified on account of a partnership relation having existed between him and his father. The estate was thereafter administered upon and final settlement was made, and on January 4, 1911, after due notice was given, a hearing was had upon the petition for final distribution, and decree was thereupon entered settling the account of the administratrix and distributing the estate of the deceased, and, among other things, the decree made or attempted to make a distribution of an undivided one-half interest in and to the lands described in the complaint herein as being the property of the estate of the deceased. Respondent thereafter commenced this action in the district court for the purpose of removing the cloud cast upon his title by the decree of distribution which purported to distribute a one-half interest in the real estate to the heirs and to have his title quieted.

A large number of errors have been assigned, but we shall only discuss in this opinion two principal points relied on. First, it is contended that the order appointing Arizona Mitcham administratrix of the estate and the order of final settlement and distribution, decreeing and distributing a one-half interest in this property to the heirs of the estate, is now res adjudicata, and estops the respondent from denying the partnership and right of the estate to one-half interest or share in this land. The second contention is that the evidence fully establishes the partnership relation which it is alleged existed between John Carlyle Miller and George W. Miller, and that there is no substantial...