Simonton v. Simonton

• Citation: 193 P. 386,33 Idaho 255
• Parties: ANNA STACIA SIMONTON, Appellant, v. SARAH E. SIMONTON, Administratrix of the Estate of ROLVIN D. SIMONTON, Deceased, Respondent
• Decision Date: 01 October 1920
• Court: United States State Supreme Court of Idaho

193 P. 386

33 Idaho 255

ANNA STACIA SIMONTON, Appellant, v. SARAH E. SIMONTON, Administratrix of the Estate of ROLVIN D. SIMONTON, Deceased, Respondent

Supreme Court of Idaho

October 1, 1920

PLEADING-DEMURRER-CAUSES OF ACTION-JOINDER-PROBATE PROCEEDINGS-ADVERSE CLAIM-JURISDICTION OF-CREDITOR-ACTION BY WHEN PROPER-ALIMONY-JUDGMENT FOR-WHEN FINAL-INSTALMENTS-ACCRUED-FUTURE-ACTION UPON-AUTHORITY TO MODIFY-EFFECT OF-STATUTE OF LIMITATIONS.

1. The probate court while exercising its jurisdiction as a court of probate does not have power to settle disputes involving adverse claims to property alleged to belong to the estate of a deceased person.

2. Under the code system, a simple contract creditor may sue to recover a judgment for the indebtedness and in the same action avail himself of the equitable power of the court to pursue property which could not be reached in an action at law.

3. When an executor or an administrator sets up an adverse claim to property alleged by a creditor to belong to the estate, such creditor, even though his claim has been rejected by the administrator or executor, may sue him to determine the title thereto, in an action to recover his debt.

4. Courts of equity have inherent jurisdiction to award alimony for the support of the wife and minor children independent of any action for divorce or of any statutory provision.

5. In this state a suit for separate maintenance may be maintained by a wife, based on C. S., sec. 4654.

6. An order included in a final judgment directing a husband to pay a specified sum per month for the support and maintenance of his wife and minor children is a final judgment as to any instalments actually accrued, notwithstanding the judgment is subject to subsequent modification.

7. Instalments actually accrued under such a judgment constitute a debt which will support an action at law notwithstanding the fact that the court rendering the judgment would have jurisdiction to enforce it by contempt proceedings and to modify it as to future payments, provided no modification of the decree has been actually made prior to the maturity of such instalments.

8. Where the husband dies without seeking a modification of the decree, it may be enforced against his estate, even though the law would have permitted its modification during his lifetime.

9. The absence of a debtor from the state tolls the statute of limitations for the period of such absence by virtue of the provisions of C. S., sec. 6622, that "the time of his absence is not a part of the time limited for the commencement of the action."

10. Where a judgment is made payable in instalments, the statute of limitations applies to each instalment separately, and does not begin to run on any instalment until it is due.

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Wallace N. Scales, Judge.

Action to compel administratrix to account for and inventory certain property and to recover judgment against the estate on a rejected claim. Judgment for defendant. Reversed and remanded.

Reversed and remanded. Costs awarded to appellant.

Ben F Tweedy, for Appellant.

Any party, interested in an estate, including a creditor, can maintain an action against the representative of the estate who adversely claims property belonging to the estate, to recover such property to the use of the estate. (Hillman v. Young, 64 Ore. 73, 127 P. 793, 129 P. 124; Hadley v. Hadley, 73 Ore. 179, 144 P. 80; Morse v Slason, 13 Vt. 296; McFarlan v. McFarlan, 155 Mich. 652, 119 N.W. 1108; First Nat. Bank of Globe v. McDonough, 19 Ariz. 223, 168 P. 635.)

The wife does not have to get a divorce to be entitled to support and maintenance from her husband, but can have such judgment independent of a judgment for divorce. (Platner v. Platner, 66 Iowa 378, 23 N.W. 764; Farber v. Farber, 64 Iowa 362, 20 N.W. 472; Galland v. Galland, 38 Cal. 265; Finn v. Finn, 62 Iowa 482, 17 N.W. 739; Fahey v. Fahey, 43 Colo. 354, 127 Am. St. 118, 96 P. 251, 18 L. R. A., N. S., 1147; In re Popejoy, 26 Colo. 32, 77 Am. St. 222, 55 P. 1083; Hanscom v. Hanscom, 6 Colo. App. 97, 39 P. 885; Kimble v. Kimble, 17 Wash. 75, 49 P. 216; Dye v. Dye, 9 Colo. App. 320, 48 P. 313; Thurston v. Thurston, 58 Minn. 279, 59 N.W. 1017; Edgerton v. Edgerton, 12 Mont. 122, 33 Am. St. 557, 29 P. 966, 16 L. R. A. 94; Earle v. Earle, 27 Neb. 277, 20 Am. St. 667, 43 N.W. 118; Bueter v. Bueter, 1 S.D. 94, 45 N.W. 208, 8 L. R. A. 562; Loeper v. Loeper, 81 Wash. 454, 142 P. 1138.)

The judgment became final as to each instalment as soon as the instalment became due and thereupon the court, which rendered the judgment, could not tamper with it at all. (Soule v. Soule, 4 Cal.App. 97, 87 P. 205; McGregor v. McGregor, 52 Colo. 292, 122 P. 390; Sistare v. Sistare, 218 U.S. 1, 20 Ann. Cas. 1061, 30 S.Ct. 682, 54 L.Ed. 905, 28 L. R. A., N. S., 1068, see, also, Rose's U. S. notes.)

James E. Babb, for Respondent.

The first cause of action states no cause of action, because the sole original jurisdiction in probate matters is vested in the probate court, where the complaint shows this matter is pending, and the district court can only obtain jurisdiction on appeal therefrom.

The question brought to the district court on this original proceeding is now pending in the probate court, and can be disposed of there on an account ordered and objection thereto for failure to credit the estate with the $ 1,500. (1 Church, Probate Law, p. 530, par. 4; Estate of Cornelius Donahue, 3 Coff. Cal. Prob. Dec. 301; 2 Woerner on Am. Law of Administration, p. 652, sec. 311, and vol. 1, Id., p. 349.)

If the first count is against Sarah E. Simonton individually, and if she is a defendant, as she must be, to sustain the first count, then the administratrix, the sole necessary party defendant in the second count, is not a party, and no cause is stated in the second count against Sarah E. Simonton individually. (Stockton Bldg. etc. Assn. v. Chalmers, 75 Cal. 332, 7 Am. St. 173, 17 P. 229.)

The judgment exceeding statutory authority is void on its face. ( Ex parte Cox, 3 Idaho 530, 95 Am. St. 29, 32 P. 197; Waterman v. Lawrence, 19 Cal. 210, 79 Am. Dec. 212; Remington v. Superior Court, 69 Cal. 633, 11 P. 252.)

The order for payment for support of plaintiff and minor children, though written into the judgment dismissing the action, was only an interlocutory order and not a final judgment--expressly so declared in the order itself by the direction that the payment be made only "until further order of this court."

An interlocutory order can only be enforced by orders in the action of the court making it, by striking out pleadings, contempt, etc., and will not sustain an action for money. (2 Black on Judgments, sec. 959; 23 Cyc. 1503, note 40; 14 Cyc. 797, note 25; Geisler v. Geisler, 124 Ky. 292, 98 S.W. 1023, where money was ordered paid "until final order"; Parsons v. Parsons, 26 Ky. Law Rep. 256, 80 S.W. 1187; Gerrein's Admr. v. Michie, 122 Ky. 250, 91 S.W. 252; Franck v. Franck, 107 Ky. 362, 54 S.W. 192.)

BUDGE, J. Rice, J., MORGAN, C. J., concurring.

OPINION

BUDGE, J.

The second amended complaint upon which this action is based purports to contain two causes of action, one to compel the respondent as the administratrix of the estate of Rolvin D. Simonton, deceased, to account for and inventory certain property alleged to belong to the estate and not included in the inventory, and which she claims as her own, and to determine the title thereto. The second cause of action is to recover judgment on a claim which had been presented to the administratrix and disallowed, the claim being based upon a decree of the district court of Kootenai county and awarding $ 15 a month to appellant for the support of herself and her minor children. A demurrer was interposed to this complaint upon numerous grounds, and was sustained by the district court upon the ground that the two causes of action were improperly joined. The trial court ordered appellant to elect between the causes of action, and upon her refusal to do so and her election to stand upon the second amended complaint, the court entered a judgment dismissing the action. This appeal is from the judgment.

The errors assigned attack the rulings of the court in sustaining the demurrer on the ground of misjoinder, in requiring the appellant to elect, and in dismissing the action.

Respondent contends that the causes of action were improperly joined, for the reason that the probate court has exclusive original jurisdiction in all matters of probate and settlement of estates of deceased persons, and that, therefore, as to this cause of action the district court was without jurisdiction.

There is no merit in this contention because the probate court, while exercising its jurisdiction as a court of probate, does not have jurisdiction to settle a dispute involving an adverse claim to property alleged to belong to the estate. Upon this point the supreme court of California has said:

"The issues raised by the objections of the legatee to the account, and the answer of the executor to such objection directly involved the question as to where the legal title to this personal property rested, and that was an issue the probate court had no power to hear and determine. There are many matters relating to the estates of deceased persons of which the probate court has no jurisdiction, and the determination of the question of title to property is essentially one of them. When it became apparent from the pleadings that matters of title to property were at issue, such matters should have been left to other courts for determination; care being exercised that all parties interested should be fairly and fully represented at the trial. . ....