Nissen v. Elliott

• Decision Date: 01 November 1920
• Docket Number: 208
• Citation: 224 S.W. 958,145 Ark. 540
• Parties: NISSEN v. ELLIOTT
• Court: Arkansas Supreme Court

224 S.W. 958

145 Ark. 540

NISSEN v. ELLIOTT

No. 208

Supreme Court of Arkansas

November 1, 1920

Prohibition to Prairie Chancery Court, Southern District John M. Elliott, Chancellor; prohibition awarded.

Writ of prohibition awarded.

J. F Holtzendorff and Trimble & Trimble, for petitioner.

1. The chancery court was without jurisdiction over the estate of Otis G. Baw, deceased, and the writ of prohibition should issue. The probate court had jurisdiction alone, and is a court of superior jurisdiction. Kirby's Digest, § 1340; 43 Ark. 324; 83 Id. 416.

2. Petitioner, notwithstanding she was administratrix of Baw's estate, had the right to present her claim to the probate court for consideration and judgment, Kirby's Digest, § 109; 85 Ark. 296. The probate court had authority to refer complicated accounts to an auditor to be re-examined and restated according to the rules laid down for government of masters in chancery. Kirby's Digest §§ 6326, 6341; 79 Ark. 75. Also has power to order the payment and distribution of funds in the haads of an administrator and to enforce its orders. 87 Ark. 105. The complaint did not state facts for chancery jurisdiction. 90 Ark. 451; 95 Id. 434. The probate court only had jurisdiction. 33 Ark. 727, 164. Kirby's Digest, §§ 3993-6, provide for the dissolution or modification of an injunction. This case falls within the exceptions. 40 Ark. 510. See 22 R. C. L., p. 5. The chancellor wrongfully assumed jurisdiction.

Cooper Thweatt and Frauenthal & Johnson, for respondent.

1. The Supreme Court has no jurisdiction to issue prohibition against a chancellor in vacation. 73 Ark. 66.

2. The chancery court, having jurisdiction for one purpose, will retain it to fully try and determine the case for all purposes and finally decide the rights of all parties. 29 Ark. 407; 33 Id. 728; 51 Id. 75; 75 Id. 52; 83 Id. 554; 99 Id. 438. See, also, 2 Crawford's Digest, 1865-6. The complaint was sufficient to give the chancery court jurisdiction. (1) The administration was taken out for fraudulent purposes, as there were no debts. (2) Allegations were made showing that Eva Baw Nissen had obtained possession -- was in possession -- of a greater amount of personal property than was necessary to pay the debts of the estate, and the real estate should not be sold. (3) She was concealing property belonging to Otis G. Baw, deceased, and (4) allegations were further made sufficient to require an accounting of Mrs. Nissen for moneys and properties in her hands belonging to Otis G. Baw.

OPINION

MCCULLOCH, C. J.

Otis G. Baw, a resident of Prairie County, died intestate and without issue in said county on December 22, 1918, and his sister, who is one of the heirs, applied to the probate court for letters of administration, which were duly granted by that court. She filed a claim against the estate for services rendered the decedent, and on presentation of the claim to the probate court it was set down for hearing on May 10, 1920. The two other heirs were infants and appeared in the probate court by guardian to resist the allowance of the aforesaid claim against the estate and procured a postponement of the trial for the purpose of filing an answer and taking depositions. Before the day for trial in the probate court, said infants by their guardian, instituted an action in the chancery court of Prairie County, setting forth the death of Otis G. Baw and the fact that appellant and said infant plaintiffs were the heirs-at-law, and that appellant had been appointed administratrix of said estate and had presented a claim for allowance against the estate.

It was further alleged in the complaint that Otis G. Baw left a large amount of personal property, consisting of money in bank and other personal property, amounting in the aggregate to the sum of $ 16,000, and "that the said Eva Baw Nissen was fraudulently attempting to set up some kind of indebtedness due by the said Otis G. Baw to her, and through fraud was attempting to have herself appointed, and did have herself appointed for that purpose, as administratrix for said estate with the fraudulent purpose of presenting said claim individually and of failing to make any defense against the same as administratrix and of thus fraudulently endeavoring to obtain a judgment against said estate." It was further alleged that appellant "had moneys belonging to said estate in her possession and had personal property of said estate in her possession amounting to at least $ 16,000 and was fraudulently secreting and hiding same and withholding same." And it was also alleged that Otis G. Baw was not indebted to appellant in any sum or to any other person and that there were no debts of the estate.

The prayer of the complaint was that appellant be required to answer and make...