Smith v. Shamburger
| Decision Date | 26 January 1951 |
| Citation | 238 S.W.2d 844,314 Ky. 850 |
| Parties | SMITH v. SHAMBURGER, Judge. |
| Court | United States State Supreme Court — District of Kentucky |
Walter B. Smith, Louisville, for petitioner.
Lawrence G. Duncan, Louisville, for respondent.
Petitioner, Mrs. Patricia R. Smith, seeks a writ of mandamus in this Court against Hon. Boman L. Shamburger, Judge of the Jefferson County Court, to compel him to require the Louisville Trust Company and the Citizens Fidelity Bank and Trust Company, Co-administrators with the will annexed of the estate of John A. O'Brien, deceased, to file a final settlement of said estate and to cause certain acts mentioned hereafter to be performed.
On June 21, 1950, the Co-administrators filed in the County Court what they style as 'An Account and Final Settlement of the Execution of Their Trust' of the O'Brien estate, in which they state that they have paid all debts, taxes, legacies and other claims against this estate, except the following items: (1) Compensation to and expenses of the Co-administrators for their services; (2) fees to various lawyers for representing the Co-administrators in several litigations affecting the O'Brien estate; and (3) legacies of $1,000 to the College of Arts and Sciences of Georgetown University of Washington, D. C., and of $5,000 to the Catholic Bishop of the Diocese of Kentucky. The accounting, we shall call it, further shows that all of the assets of the estate, which consisted entirely of personal property, have been disbursed, except the sum of $36,455.14, now invested by the Co-administrators in United States bonds and retained by them to pay the unliquidated claims above described; and the Co-administrators ask that they recover from petitioner any sum in excess of $36,455.14, if this amount should be insufficient to satisfy the unliquidated claims set forth in the accounting.
We do not have before us the record showing the proceedings of the County Court in the interim between the filing of the settlement and the application of petitioner for this writ. The briefs of petitioner and respondent, however, do recite certain significant details as to what occurred during this period of time, and we here mention those facts that we deem important to furnish a background for this case.
On August 7, 1950, at a hearing regularly set, petitioner objected to the confirming, or approving, or hearing by the County Court, or any commissioner appointed by it, of any proof on any item contained in the accounting; and, on the same date, she moved the County Court to require the Co-administrators, and we employ her words, 'to file a final settlement of the estate of John A. O'Brien, deceased, in compliance with the Kentucky Revised Statutes and the rulings of the Court of Appeals on the settlement of this estate, and that both of the Co-administrators be required to sign a sworn affidavit thereto.' On August 22, 1950, petitioner filed a motion to strike from the record of this estate in County Court, and we quote her,
On this last date, the County Court overruled all of petitioner's objections to and motions concerning the filing of the accounting, and then, acting under the authority of KRS 25.180 and KRS 25.190, ordered the accounting referred to A. Scott Hamilton, Special Commissioner, to hear proof on any pleas, objections and exceptions filed thereto and to make such recommendations back to the County Court that the Commissioner might deem advisable relative to it. On September 8, 1950, the Commissioner set Obtober 4, 1950, as a hearing date upon the accounting, at which time exceptions to it must be filed and all preliminary questions presented with reference to it.
On October 3, 1950, petitioner filed her petition herein against Hon. Boman L. Shamburger, Judge of the Jefferson County Court, to compel him officially to require the Co-administrators to file, as she contends, 'a final settlement' of the O'Brien estate that should include: All costs of administration of the O'Brien estate, and specifically set forth all compensation claimed by the Co-administrators and all fees claimed by the lawyers for representing the Co-administrators, for services rendered by them to the estate from March 1, 1934, to the date of a final settlement thereof, all claims to be proven as debts against a decedent's estate are required by law to be proven. Petitioner further asks that the County Court be required to issue an order to A. Scott Hamilton, Special Commissioner, to prevent him from approving or hearing or confirming any proof for or against any item contained in the accounting of the Co-administrators until, as she insists, 'a final settlement of the above estate, as above requested, is filed in the Jefferson County Court and this petitioner, the sole beneficiary, be given ample time in which to file exceptions thereto.' At the time the petition was filed herein, petitioner moved for, and was granted, a stay of all proceedings in the County Court until this Court should pass upon this proceeding on its merits, pursuant to Sec. 476 of the Civil Code of Practice.
Under Section 110 of the Kentucky Constitution this Court has absolute power to issue writs against any other Kentucky Court in such instances 'as may be necessary to give it a general control of inferior jurisdictions.' However, it has consistently adhered to the principle of law that it will issue a writ (a) only when the inferior court is acting without jurisdiction, or (b) it is acting within its jurisdiction, but erroneously, and great and irreparable injury will result therefrom and the petitioner is without adequate remedy by appeal or otherwise. Smith v. Burnett, Judge, 300 Ky. 249, 188 S.W.2d 480; Henneberger Co.'s Assignee v. Price, Judge, 252 Ky. 402, 67 S.W.2d 471; Frain v. Applegate, Judge, 239 Ky. 605, 40 S.W.2d 274.
We must, therefore, decide...
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Louisville Trust Company v. Smith
......The denial of the objections was appealed. Defendant filed a mandamus proceeding in the Kentucky Court of Appeals to restrain the County Court from proceeding with a settlement of the final account; Smith v. Shamburger, 314 Ky. 850, 238 S.W.2d 844; she attempted to remove the settlement proceedings to this United States District Court; she took all possible steps to prevent the settlement of the account, except that she did not file any actual exceptions challenging the propriety of the accounting for receipts ......
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Merck & Co. v. Combs
......Under these circumstances it is well-settled that this Court has no authority to issue the order requested. Boone v. Smith", Ky., 263 S.W.2d 928; Union Trust Co. v. Garnett, 254 Ky. 573, 72 S.W.2d 27; Smith v. Shamburger, 314 Ky. 850, 238 S.W.2d 844.Id. at 226-227. \xC2"......
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MERCK & COMPANY Inc. IN INTEREST
......Under these circumstances it is well-settled that this Court has no authority to issue the order requested. Boone v. Smith", Ky., 263 S.W.2d 928; Union Trust Co. v. Garnett, 254 Ky. 573, 72 S.W.2d 27; Smith v. Shamburger, 314 Ky. 850, 238 S.W.2d 844.Id. at 226-227. \xC2"......
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Louisville Trust Company v. Smith
......at 132, 44 S.W. at 447 (Emphasis supplied). In one of the suits involving this estate, Smith v. Shamburger, 314 Ky. 850, 238 S.W.2d 844, the Kentucky Court of Appeals explicitly pointed out that the County Court has judicially determined the accounting filed by the joint administrators to be "a final settlement," 314 Ky. at 854, 238 S.W.2d at 846, and that the widow, appellant herein, "can obtain ......