Smith v. Shamburger, Judge
| Citation | 314 Ky. 850 |
| Parties | Smith v. Shamburger, Judge. |
| Decision Date | 11 May 1951 |
| Court | United States State Supreme Court (Kentucky) |
1. Mandamus. — Court of Appeals will issue writ of mandamus only when inferior court is acting without jurisdiction, or is acting within its jurisdiction, but erroneously, and great and irreparable injury will result therefrom and petitioner is without adequate remedy by appeal or otherwise. Const. sec. 110.
2. Mandamus. — When a court, exercising jurisdiction and discretion, granted to it by law, enters a judgment of record, Court of Appeals cannot place its own construction on that judgment, unless it is properly before the Court of Appeals on an appeal.
3. Mandamus. — Mandamus will lie to compel trial of an issue, or hearing of a motion, but it cannot be used to control how such shall be tried, or what order shall be entered in any case in which discretion may be exercised by a court or a judge. Const. sec. 110.
4. Courts. — Court of Appeals cannot assume and exercise supervisory powers over proceedings in an inferior court.
5. Mandamus. — The Court of Appeals will not in mandamus proceedings compel a court or judge to decide pending questions in a particular way. Const. sec. 110.
6. Executors and Administrators. — County court had ample authority under statutes specifying requirements for making and filing fiduciary settlements in county courts, and describing how claims against estates are to be proven before presentation to personal representative for payment, to refer accounting of co-administrators to a special commissioner, who should hear proof on any pleas, objections, and exceptions made to it and report back his recommendations thereon to county court. KRS 25.170, 25.175, 25.180, 25.190, 396.010, 396.020.
7. Mandamus. — Where county court had jurisdiction of accounting proceedings of co-administrators, and there was no showing that petitioner would suffer any damages as result of any order which had been entered by county court, or was about to be made by county court, mandamus would not lie to compel county court to require co-administrators to file final settlement of estate, and to cause certain acts to be performed.
Walter B. Smith for petitioner.
Lawrence G. Duncan for respondent.
Before Boman L. Shamburger, Judge.
Denying writ and dismissing petition.
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 October 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...
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