Shaw v. McDougall

• Decision Date: 23 May 1936
• Docket Number: 6307
• Citation: 56 Idaho 697,58 P.2d 463
• Parties: JOHN E. SHAW, Administrator of the Estate of CARL E. HIATT, deceased, Plaintiff, v. ISAAC McDOUGALL, District Judge, Presiding in the District Court of the Ninth Judicial District, in and for Teton County, Defendant
• Court: Idaho Supreme Court

58 P.2d 463

56 Idaho 697

JOHN E. SHAW, Administrator of the Estate of CARL E. HIATT, deceased, Plaintiff, v. ISAAC McDOUGALL, District Judge, Presiding in the District Court of the Ninth Judicial District, in and for Teton County, Defendant

No. 6307

Supreme Court of Idaho

May 23, 1936

COURTS-APPEAL IN PROBATE MATTERS-JURISDICTION OF DISTRICT COURT-HUSBAND AND WIFE-COMMUNITY PROPERTY, ADMINISTRATION OF-ORIGINAL PROCEEDINGS-DESIGNATION OF PARTIES.

1. Original action in Supreme Court to review district judge's order denying motion to dismiss appeal from probate court's decree disposing of community property held "special proceeding" within statute authorizing designation of parties as plaintiff and defendant (I. C. A., sec. 13-101).

2. On death of either spouse without making testamentary disposition of his or her half of community property, it goes to survivor, subject to community debts, family allowance and charges and expenses of administration.

3. If intestate wife predeceases husband, no administration on community property is necessary, apart from filing in probate court of statutory petition for distribution (I. C. A., secs 14-113, 14-114).

4. On appeal from probate court on questions of law and fact, trial must be de novo, and district court lacks jurisdiction to frame and decide issues not presented to probate court (I. C A., sec. 11-401; Const., art. 5, secs. 20, 21).

5. Wife's alleged administrator and heirs, being strangers to record in probate court, held not entitled to appeal to district court from decree disposing of community property since if desiring to contest surviving husband's petition, they should have presented their claims and objections in first instance to probate court (I. C. A secs. 11-401, 14-113, 14-114; Const., art. 5, secs. 20, 21).

Original action to review an order of a district judge denying a motion to dismiss an appeal. Writ of review issued and defendant prohibited from further proceeding with the appeal, other than to dismiss it.

Writ issued. No costs awarded.

Mary Smith and W. Lloyd Adams, for Plaintiff.

Probate courts are courts of record, and courts of original jurisdiction in all probate matters. (Harkness v. Utah Power & Light Co., 49 Idaho 756; sec. 21, art. 5, Const.)

(a) The district court's jurisdiction of such matters is wholly derivative and can be exercised only on appeal in the proper case.

(b) If the probate court did not have jurisdiction the district court acquires no jurisdiction by the appeal. It is essential to the jurisdiction of the district court that the court from which it was taken had jurisdiction. (Burt & Carlquist Co. v. Marks, 53 Utah 77, 177 P. 224; In re Searles, 46 Mont. 322, 127 P. 902; Valencia Water Co. v. Neilson, 27 N.M. 29, 192 P. 510; Chadwick v. Chadwick, 6 Mont. 566, 13 P. 385; Chaves v. Perea, 3 N.M. 71, 2 P. 73.)

The right of appeal is not given to one not a party of the record, or one who has not submitted himself to the jurisdiction of the court from which the appeal was taken.

On an appeal the record itself must disclose that one assuming to take an appeal is an aggrieved party and has a right to appeal. (Rural High School Dist. No. 1 v. School Dist. No. 37, 32 Idaho 325, 182 P. 859.)

T. W. Smith and S. H. Atchley, for Defendant.

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

OPINION

MORGAN, J.

This action was commenced in this court to procure a review of an order made by defendant denying plaintiff's motion to dismiss an appeal to the district court, taken on questions of both law and fact, by Wm. A. Strong, Charles McLachlan and Mrs. A. T. Jones, from a decree of the probate court of Teton County, made and entered on petition of Carl E. Hiatt, wherein it was adjudged and decreed that he and Mary E. Hiatt were married January 22, 1906; that thereafter, during their relationship as husband and wife and while living together as such, they acquired real estate and personal property in Teton County, in the decree described; that it was their community property at the time of her death; that she died intestate August 10, 1934; that she was, at that time, a resident of Teton County and that the property described in the decree, and the whole thereof, be, and it was, decreed and distributed to Carl E. Hiatt. After entry of the decree and before appeal therefrom Hiatt died, and plaintiff was appointed administrator of his estate. A writ of review was issued and a transcript of the proceedings in the probate and district courts was filed in response thereto, and the matter is now before us for decision of the question as to whether the district judge has jurisdiction to hear the appeal.

In the application for writ of review the case is entitled "In the Matter of the Estate and Community Property of Mary E. Hiatt, Deceased, and Carl E. Hiatt, her surviving husband." This is a special proceeding, governed by I. C. A., Title 13, sec. 13-101 of which is as follows: "The party prosecuting a special proceeding may be known as the plaintiff, and the adverse party as the defendant." The title has been changed to conform to the direction contained in the statute. (Epperson v. Howell, 28 Idaho 338, 154 P. 621, and cases therein cited.)

Upon the death of either husband or wife without having made testamentary disposition of his or her half of the community property it shall go to the survivor, subject to community debts, family allowance and charges and expenses of administration. If the wife dies intestate prior to the death of the husband no administration upon the community property is necessary. (I. C. A., sec. 14-113) except as provided for in sec. 14-114, as follows: ". . . . Upon the death of the wife intestate leaving community property, the surviving husband . . . . shall file a verified petition in the probate court, setting out the marriage, acquiring of property during coverture, a showing that it was community property, and the death of the wife intestate." That section requires the probate judge to make an order directing all persons interested to appear before him at a time and place specified, to show cause why the petition should not be granted, and the clerk to post notices, not less than seven days before the hearing, in at least three public places in the county, setting forth the time and place when and where the matter will be heard, and the nature of the petition. It further provides: "If upon such hearing, or at such time or times to which such hearing may be postponed, it shall appear that the parties were duly married, that the property was acquired during coverture, that the same was community property, and that the wife died intestate, the probate judge shall make a decree to that effect, and thereupon a certified copy of such decree shall be recorded, and thereafter shall have the same effect as a final decree of distribution so recorded."

All statutory requirements looking to the making and entry of the decree in the probate court appear to have been fully conformed to.

Neither appellant named in the notice of appeal to the district court appeared in the probate court, and there is nothing in the record to disclose what interest, if any, either of them had in the estate of Mary E. Hiatt, deceased, unless it may be inferred from the notice of appeal, wherein it is recited "that Wm. A. Strong, the duly appointed, acting and qualified administrator of the estate of Mary E. Hiatt, deceased, and Charles McLachlan and Mrs. A. T. Jones, heirs of said Mary E. Hiatt, deceased, by and through their attorneys hereby appeal," etc.

Article 5, sec. 20 of the constitution is as follows: "The district court shall have original jurisdiction in all cases both at law and in equity, and such appellate...