Parmenter v. Ray

• Decision Date: 06 June 1916
• Docket Number: 7981.
• Citation: Parmenter v. Ray, 1916 OK 600, 158 P. 1183, 58 Okla. 27 (Okla. 1916)
• Parties: PARMENTER ET AL. v. RAY, COUNTY JUDGE.
• Court: Oklahoma Supreme Court

158 P. 1183

58 Okla. 27, 1916 OK 600

PARMENTER ET AL. v. RAY, COUNTY JUDGE.

No. 7981.

Supreme Court of Oklahoma

June 6, 1916

Syllabus by the Court.

By section 2, art. 7, of the Constitution, the Supreme Court has power to issue the writ of certiorari as it existed at common law, as an aid in the exercise of its general superintending control over all inferior courts.

The office of the common-law writ of certiorari, where no adequate remedy by appeal is provided, is to bring up the record of an inferior court or tribunal for review as to jurisdictional matters only.

"Jurisdiction" is the power to hear and determine the subject-matter in controversy between parties to an action or in a statutory proceeding; to adjudicate or exercise any judicial power over them. It does not relate to the rights of the parties, as between each other, but to the power of the court.

The common-law writ of certiorari, as used in this jurisdiction cannot be employed as a substitute for appeal or proceedings in error to enable the Supreme Court to review the action of the county court or the judge thereof, in appointing as special administrator a stranger to the proceedings, and in not appointing the persons named as the executors of a will the probate of which was then in contest in the county court.

Original petition by B. M. Parmenter and another for writ of certiorari to Robert J. Ray, as County Judge of Comanche County, to review an order appointing J. Conner special administrator of the estate of Abraham F. Kindt, deceased. Writ discharged.

Charles Mitschrich, of Lawton, for plaintiffs.

Johnson & Stevens, of Lawton, for contestant Kindt.

SHARP J.

This is an original proceeding for a writ of certiorari, having for its purpose a review of the action of the county court of Comanche county, appointing J. Conner special administrator of the estate of Abraham F. Kindt, deceased. Upon the filing of the petition by B. M. Parmenter and W. E. Hudson, praying for the writ, the same was issued out of this court, and return thereof, with a transcript of all proceedings had in said county court, was in due time made.

The case in brief presents the following state of facts: A petition for the probate of the will of Abraham F. Kindt deceased, having been filed in the county court of Comanche county, a contest was filed by Josiah Kindt, a brother of the deceased. In the will sought to be probated, B. M. Parmenter and W. E. Hudson, the proponents thereof, were named as executors. While said contest was pending, and on January 8, 1916, Josiah Kindt filed a petition, asking that he be appointed special administrator of the estate of his deceased brother, and on January 10th following, Hudson and Parmenter filed an application, asking that they be appointed special administrators of said estate. A hearing on said petitions being had, the court found that neither of the petitioners should be appointed special administrator or administrators, but from the stipulations entered into found that a necessity for the appointment of a special administrator existed, and that it was for the best interests, both of the estate, the proponents, and contestant of the will, that a disinterested person be appointed special administrator, whereupon Conner was appointed to said office. Prior to the service of the writ of certiorari, said Conner gave bond and duly qualified as special administrator. Immediately after service of the writ, the county judge made an order, directing said special administrator to proceed no further until action by this court in the certiorari proceeding.

Section 6282, Rev. Laws 1910, confers express authority upon the judge of the county court to appoint a special administrator, to collect and take charge of the estate of the decedent, and to exercise such other powers as may be necessary for the preservation of the estate, when there is delay in granting letters testamentary, or of administration, from any cause; or when such letters are granted irregularly; or no sufficient bond is filed as required; or when no application is made for such letters; or when an administrator or executor dies, or is suspended or removed. The appointment is made without notice, by entry upon the minutes of the court, specifying the powers to be exercised by the administrator. By section 6284:

"In making the appointment of a special administrator, the judge must give preference to the person entitled to letters testamentary or of administration, but no appeal must be allowed from the appointment."

It is the contention of the plaintiffs that as they were named as executors in the will presented for probate, by virtue of the statute, they should have been appointed special administrators, and that the court exceeded its jurisdiction in making an order appointing a stranger special administrator; and that the action of the county court should be corrected by this court pursuant to section 2, art. 7, of the Constitution, providing:

"The original jurisdiction of the Supreme Court shall extend to a general superintending control over all inferior courts and all commissions and boards created by law"

--and which section also confers upon the Supreme Court the power to issue writs of certiorari, and to hear and determine the same. This provision of the Constitution was first before the court in Baker v. Newton et al., 22 Okl. 658, 98 P. 931, where it was held that, the writ of certiorari having been previously abolished by statute, it must be taken that the framers of the Constitution, and the people who adopted it, intended to authorize the writ as it existed at common law, as an aid to the Supreme Court in the exercise of its general superintending control over all inferior courts. It was said that the office of the writ of certiorari at common law was to bring up the record of an inferior court or tribunal to a superior court for investigation as to jurisdictional errors only. This opinion has been followed in a number of cases, among which is Palmer v. Harris, 23 Okl. 500, 101 P. 852, 138 Am. St. Rep. 822; In re Benedictine Fathers of Sacred Heart Mission, 145 P. 494. In the latter case it was said: "It is undoubtedly within the power of this court, under the provision of the Constitution above quoted, to review upon certiorari the jurisdictional errors of a county court, in a case in which no appeal or proceeding in error will lie, to correct any wrong that may have been done the parties by reason of a judgment rendered without jurisdiction or in excess of the jurisdiction of the lower court. Under the facts admitted in this case the county treasurer was without authority to list or assess for taxation under any provision of the statutes in this state the property in question, specifically exempted from taxation by the provisions of the Constitution; and the county court, upon appeal from such action of the county treasurer, was equally without jurisdiction to violate the constitutional right of petitioner by adjudging that property used exclusively for its school and for religious and charitable purposes should be listed and assessed for taxation."

An error of judgment on the part of a judge or officer, either as to the facts or the law of the case, could not at common law be inquired into and corrected by certiorari, as the common-law writ of certiorari removed only the record, or entry in the nature of the record, of the proceedings of the court below, whereby only the jurisdiction and regularity of its proceedings could be reviewed. Hamilton v. Town of Harwood, 113 Ill. 154; Miller v. Trustees of Schools, 88 Ill. 26; Tallmadge v. Potter, 12 Wis. 318; Hunt v. City of Jacksonville, 34 Fla. 504, 16 So. 398, 43 Am. St. Rep. 214; Buckner, Ex parte, 9 Ark. 73; State ex rel. Thompson v. Dist. Court, 23 Nev. 243, 45 P. 467.

As authorized by statute in a number of states, the authority of the court is not limited to questions of jurisdiction and regularity. In such jurisdictions the court has the power to examine the decisions of the court or officer upon questions of law, and to look into the evidence, and affirm, reverse or quash the proceedings, as justice may require. 2 Spelling on Injunctions and Extraordinary Legal Remedies, § 1891. According to the rule announced in the former opinions of this court, the inquiry presented is: Did the county court have jurisdiction to appoint Conner special administrator? The statute, we have seen, confers the power and makes it the duty of a judge of the county court to appoint special administrators, in cases such as that presented by the return to the writ. It is for not observing section 6284 that it is claimed the order made by the court is invalid. Plaintiffs do not contend that the court did not have jurisdiction to appoint a special administrator; indeed, they themselves invoked the jurisdiction of the court for this very purpose. But they say that the court ignored their rights and that they are aggrieved thereby, and that as the statute permits no appeal to be taken from the order, there is no other means of review than by certiorari. By statute the court had the power in proper cases to appoint a special administrator, and it was agreed that the facts presented a proper case for the appointment of such administrator. This office, each of the petitioners sought, and it is only of the action of the court in naming another to act that plaintiffs here complain. Whether the court erred as a matter of law in not appointing the executors named in the will as special administrators is unnecessary to a determination of the case before us. This right is given by statute to the person "entitled" to letters testamentary. But as the will, naming the executors, was attacked, both on the ground of want of testamentary capacity...