Pine v. Callahan

• Decision Date: 12 December 1902
• Citation: 8 Idaho 684,71 P. 473
• Parties: PINE v. CALLAHAN
• Court: Idaho Supreme Court

71 P. 473

8 Idaho 684

PINE v. CALLAHAN

Supreme Court of Idaho

December 12, 1902

GUARDIAN AD LITEM-NONRESIDENT OF THE STATE MAY BE APPOINTED. In application for admission of will to probate, a nonresident may be appointed guardian ad litem for minor heirs.

WRITTEN DEMAND FOR A JURY TRIAL IN PROBATE COURT IN CONTESTED WILL CASES SUFFICIENT FOR TRIAL IN DISTRICT COURT.-Where written demand is made in probate court for a jury trial in a case involving the contest of a will, and such demand is filed in the district court, it is sufficient to authorize the district court in ordering a jury trial in that court, without further notice, as required by section 4095 of the Revised Statutes.

CONFLICTING EVIDENCE.-Where it appears from the record that a substantial conflict in the evidence exists on the material issues involved in the controversy, this court will not reverse the judgment of the trial court.

JUROR DISQUALIFIED IF HE HAS AN UNQUALIFIED OPINION.-If it appears on the examination of a juror, on his voir dire, that he has an unqualified opinion on any material issue involved, a challenge for that reason is properly sustained.

JUROR QUALIFIED IF HE HAS NO OPINION ON THE MERITS AND NO BIAS OR PREJUDICE.-If it appears, from the examination of a juror on his voir dire, that he has no fixed opinion as to the merits of the controversy, and has no prejudice for or against any party to the controversy, a challenge for cause should be overruled.

(Syllabus by the court.)

APPEAL from District Court, Kootenai County.

Affirmed, with costs to respondent.

Cyrus Happy and Charles L. Heitman, for Appellants.

Sections 5782, 5783, and 5789 of the Revised Statutes: These three sections are embodied in the chapter on guardian and ward and are general in their terms, objects and purposes and so are sections 4095, 4096, relating to appointment of guardian ad litem in civil actions, and will yield to any statutory provisions having a special or limited purpose, in any proceeding coming within the terms or objects of the latter. (Sutherland on Statutory Construction, secs. 157-159; Home for Inebriates v. Reis, 95 Cal. 142, 30 P. 205; Ex parte Crow Dog, 109 U.S. 556, 570, 3 S.Ct. 396.) By section 5305 of the Revised Statutes of Idaho in the chapter on the probate of wills, is to be found the provision of law defining who may appear and contest a will, and how that contest may be waged. A devisee, legatee, heir or creditor may contest through their guardians, or by an attorney appointed by themselves or by the court for that purpose. The court may, in its discretion, appoint some competent attorney at law to represent in all such proceedings the devisee legatee, heirs or creditors of the decedent, who are minors and have no general guardian in the county, or who are nonresidents of the territory; and those interested who, though they are neither such minors or nonresidents, are unrepresented. (Section 5673 of the same chapter.) These statutes, relating to the special subject of probate of wills and probate proceedings, are identical with the statutes of California, not only as to language, but as to the subdivision under which they occur, and have been construed by the supreme court of that state repeatedly, and by the supreme court of the United States at least once. (Estate of Scott, 15 Cal. 220; Ex parte Smith, 53 Cal. 204; Carpenter v. Superior Court, 75 Cal. 596, 19 P. 174; Robinson v. Fair, 128 U.S. 89, 9 S.Ct. 30.) The minor children of the testator having had a general guardian residing in the county at the time Pine was appointed guardian ad litem, sections 5305, 5669, and 5673 of the Revised Statutes of Idaho above referred to, made it his duty to appear for and represent his wards, and there was no occasion for appointment of a guardian ad litem. If circumstances required the court to appoint anyone to represent the infants in that proceeding, the one so appointed should have possessed the qualifications mentioned in those statutes, that is, he should have been an attorney. Pine was ineligible for the appointment on the further ground that he is a nonresident and actually out of the jurisdiction of the court. The statute does not in express terms prohibit the court from appointing a nonresident, nor does it expressly or by implication authorize such an appointment. But a general guardian, although required to give bond for the faithful performance of his duties, must be a resident and householder or freeholder within the state. (Rev. Stats., secs. 5829, 4938.) A guardian ad litem gives no bond, takes no oath to perform his duties, nor even to support the constitution--in fact, if he is not in the jurisdiction and under the control of the court appointing him, he is the most independent and irresponsible individual that was ever given by court power to jeopardize and sacrifice the interests of others. We ask, what could the court do, in the way of controlling the conduct of Pine? Absolutely nothing. He can squander the estate of these wards in litigation, without pecuniary or personal risk to himself. He is beyond the reach of citation, attachment, fine and imprisonment. (Knickerbocker v. De Freest, 2 Paige, 305; Phillips v. Dusenberry, 8 Hun, 350; Bryant v. Livermore, 20 Minn. 349.) Jury without jurisdiction: We contend that the jury was unauthorized to try the case. The right of jury trial in this proceeding is derived solely from the statute. That authority is stated in section 5308 of the Revised Statutes of Idaho where it is expressly declared that the issues of fact raised in will contests "must, on request of either party in writing (filed three days prior to the day set for the hearing), be tried by a jury. If no jury is demanded, the court must try and determine the issues joined." No request was made in the district court by either party in writing for a jury trial. Proponents and defendants objected to the case being tried by jury and demanded that the issues be tried by the court. This motion was denied by the court and a jury impaneled, the court holding that a demand for a jury in the probate court would be considered a demand for a jury trial in the district court. This case, having been appealed to the district court upon questions of both law and fact, the action had to be tried anew. (Rev. Stats., sec. 4840.)

John B. Goode and Willis Sweet, for Respondents.

Section 5789 of the Revised Statutes of Idaho makes it the duty of the guardian to appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose, and section 5669 of the Revised Statutes provides that: "At or before the hearing of petitions and contests for the probate of wills, the court may, in its discretion, appoint some competent attorney at law to represent, in all such proceedings, devisees legatees, heirs or creditors of the decedent, who are minors and have no general guardian in the country," etc. It is submitted that this provision, while it gives the court the right to appoint some attorney to represent infants in a contest of this character, does not intend to take from the court its general power--where the interests of the infants are involved--to make the appropriate order for such infants to become parties plaintiff in the suit, and to do so by a guardian ad litem. It seems, however, that the question of this appointment, and the jurisdiction of the court to make it, is absolutely settled by the provisions of sections 4095 and 4096 of the Revised Statutes. The functions of the office of a guardian ad litem are so entirely different from those of a general guardian that no analogous reasoning can be invoked, from the fact that the statute requires of the latter that he shall be a resident and householder or freeholder, within the state. The law does not, however, favor the appointment as guardian ad litem of an infant, a person unconnected with the infant. (3 Redfield on Law of Wills, 437.) While section 4840 of the Revised Statutes provides that upon an appeal to the district court upon questions of law and fact, no statement need be made, but that the action be tried anew, section 4841 requires that the pleadings, all notices, motions and other papers filed in the cause in the court below shall be transmitted to the clerk of the district court. The request for a jury, in writing, filed in the probate court was, therefore, as much before the district court as were the pleadings and other papers in the cause, and was filed with the clerk of the district court when the transcript and other papers in the cause were transmitted to him from the lower court. In prescribing the practice to be followed in trying contest of wills, section 5308 provides, among other things, that "any issue of fact raised, involving . . . . must on request of either party in writing (filed three days prior to the day set for hearing), be tried by a jury. If no jury is demanded, the court must try and determine the issues joined." This section is relied upon by counsel for contestees and appellants to maintain their contention that the court below had no right to impanel a jury in this case and that the jury was without jurisdiction. We submit that not only was no error committed by the district court in impaneling the jury, but that the statute, mandatory in its terms, made it an absolute duty, the request in writing having been actually filed with the clerk of the district court, and still remained on file in that court from the time it and all other papers in the cause were transmitted from the probate court up to the time the case was called for trial in the district court. The statute makes no requirement as to serving notice of such demand upon any of the parties, but simply directs that such a request in...