State ex rel. Biering v. District Court, Fourteenth Judicial District, Meagher County

• Decision Date: 03 August 1943
• Docket Number: 8445.
• Citation: 140 P.2d 583,115 Mont. 174
• Parties: STATE ex rel. BIERING v. DISTRICT COURT, FOURTEENTH JUDICIAL DISTRICT, MEAGHER COUNTY et al.
• Court: Montana Supreme Court

140 P.2d 583

115 Mont. 174

STATE ex rel. BIERING v. DISTRICT COURT, FOURTEENTH JUDICIAL DISTRICT, MEAGHER COUNTY et al.

No. 8445.

Supreme Court of Montana

August 3, 1943

As Amended August 10, 1943.

Petition by the State of Montana on the relation of E. A. M. Biering against the District Court of the Fourteenth Judicial District of the State of Montana in and for the County of Meagher and the Honorable W. C. Husband, Judge thereof, for an alternative writ of supervisory control to annul an order dismissing a petition filed by relator for revocation of letters testamentary issued to Aubrey Barlow Ringling as executrix of the estate of Richard Theodore Ringling deceased, and for other relief.

Peremptory writ issued in accordance with opinion.

Ralph J. Anderson, of Helena, for relator.

J. H Higgins, of White Sulphur Springs, and T. B. Weir, of Helena for respondents.

BENNETT District Judge, sitting in place of Mr. Justice Adair disqualified.

Relator herein seeks annulment of an order made by the District Court of the Fourteenth Judicial District, in and for the County of Meagher, dismissing a petition filed by him for the revocation of letters testamentary theretofore issued to Aubrey Barlow Ringling as executrix of the estate of Richard Theodore Ringling, deceased, and for other relief.

Decedent, Richard Theodore Ringling, died August 31, 1931. Thereafter and on September 26, 1931, letters testamentary were issued to Aubrey Barlow Ringling. Probate proceedings went forward and in due course it became established by judgment that relator herein, E. A. M. Biering, was a general creditor of the estate of said decedent. It appears that a considerable balance remains due relator upon his claim from said estate though from time to time payments were made to him.

On October 11, 1939, relator filed in the lower court his petition as mentioned above. Issue was joined upon the matters set out in said petition late in the year 1940. In March, 1942, an amended answer was filed by said executrix, and in May of that year she filed a written motion for an order dismissing relator's said petition on the grounds that relator was an alien enemy or an ally of an alien enemy and thereby prohibited from prosecuting the proceeding. After filing of affidavits relating to relator's status, arguments were had upon the motion to dismiss and thereafter the lower court made an order granting the motion, filing therewith a memorandum which discloses that the reason for granting the motion was that the Act of Congress known as the "Trading with the Enemy Act," for brevity hereinafter referred to as the Act, 50 U.S.C.A. Appendix, § 1 et seq., forbade the prosecution thereof.

In his petition, which was dismissed, relator, together with allegations upon which he undoubtedly sought to obtain certain relief, the propriety of which in a probate proceeding we here express no opinion upon, set out matters which brought the instant proceeding within the purview of Chapter 122 of the Code of Civil Procedure, Revised Codes of Montana, 1935. Since the lower court granted the motion upon the ground that the Act forbade relator from prosecuting the same we need not discuss the original petition for revocation in detail further than to say that it would appear that if the issues should be determinable in his favor, relator should be entitled to relief if he is in a position to demand it. Suffice it to say, it is self evident that the probate proceedings have been protracted many years beyond what would ordinarily appear to have been sufficient to have brought them to a close. This is not intended as a criticism of the trial judge whose order is now before us. His connection with the proceeding is comparatively recent and he appears to have acted promptly upon all matters finally submitted to him.

In so far as the case has been presented to us there does not appear to be any question but that if the prohibitions of the Act control, relator falls within them. That is to say, there is nothing before us which would permit us to find that relator is not an alien enemy or an ally of an alien enemy with whom we have been at war since at least the time when the motion to dismiss the petition for revocation of letters testamentary was filed.

Respondents' only suggestion as to the propriety of the exercise of supervisory control is contained in the following statement, "Because of the importance of this matter the Court's attention to the question of whether or not the order below can be construed as an order refusing to revoke letters testamentary and therefore appealable under Sec. 9731(3) R.C. 1935." The order complained of by relator, herein, is not an order refusing to revoke letters and was not an appealable order.

We, therefore, address ourselves to the determinative question: Was the lower court in error in dismissing relator's petition below for the reason that he is an alien enemy or an ally of such?

In support of his contention that the lower court erred, relator takes the position that his proceeding in the court below was not forbidden either by the "law of nations" or the terms of the Act. He contends that his position is like unto that of an alien enemy who had obtained a judgment prior to becoming such alien enemy and cites Birge-Forbes Co. v. Heye, 251 U.S. 317, 40 S.Ct. 160, 64 L.Ed. 286, and Kershaw v. Kelsey, 100 Mass. 561, 97 Am.Dec. 124, 1 Am.Rep. 142, in support of the view that such a judgment creditor may enforce his judgment. He asserts that the spirit of both the "law of nations" and the Act are confined to safeguarding the interests of the nation in order to prevent the "giving of aid and comfort to the enemy" and that the provisions of law as they relate to the taking over of property belonging to enemy aliens by the Alien Property Custodian are sufficient protection in such a case as the one with which we are concerned, citing Burgess v. Gilchrist, 123 W.Va. 727, 17 S.E.2d 804, 138 A.L.R. 676, in support thereof. He also endeavors to distinguish the proceeding below, which was in probate, from a suit or action at law or in equity, arguing that the terms of the Act do not forbid the proceeding, and cites cases which are based upon the differences as they bear upon the question of the jurisdiction of the District Courts sitting in probate.

Respondents say that since relator has not shown that he holds a license, pursuant to executive order, to do business as an alien enemy--with discussion of the terms of executive orders which they think applicable--the terms of the Act preclude him from proceeding. While adversion is made to other provisions of the Act, in the main respondents' contention revolves around that portion of section 7(b) which reads: "Nothing in this Act shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of an enemy prior to the end of the war, except as provided in section ten hereof ***." (Said section ten deals only with matters not related to the instant proceeding.) They cite Ex parte Colonna, 314 U.S. 510, 62 S.Ct. 373, 86 L.Ed. 379; Rothbarth v. Herzfeld, 179 A.D. 865, 167 N.Y.S. 199; Id., 223 N.Y. 578, 119 N.E. 1075; In re Willer's Estate, 179 Misc. 169, 37 N.Y.S.2d 906; H. P. Drewry, S. A. R. L. v. Onassis, 266 A.D. 292, 42 N.Y.S.2d 74, and several notes appearing in 143 A.L.R. 1515.

Before proceeding to the discussion of the phases of the matter before us which we deem to be controlling we mention the fact that nothing will be said upon the question as to whether the proceeding below falls within the category of a "suit or action at law or in equity" other than to comment that it might be that if it is not such, relator was not prohibited from maintaining it in any event. Be that as it may, we think the lower court was in error as we shall point out.

Whatever may have been the rule and the reasons therefor prior to the enactment of the Act, the attitude or policy of this nation relating to property interests located within the United States belonging to alien enemies became fixed by that Act so as "to mitigate the rules of law which prohibit all intercourse between the citizens of warring nations, and to...