State ex rel. Jones v. Dist. Court of Muskogee Cnty.
| Decision Date | 29 October 1946 |
| Docket Number | Case Number: 32480 |
| Citation | 198 Okla. 61,173 P.2d 417,1946 OK 304 |
| Parties | STATE ex rel. JONES, Ex'x, v. DISTRICT COURT OF MUSKOGEE COUNTY et al. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR - COURTS - Reversal and remand of probate case to district court for new trial - Effect of district court's remanding cause to county court without retrial.
Where on appeal of a cause from the district court to this court, said cause is reversed and remanded to said court for a new trial, and upon receipt of the mandate, the district court inadvertently and erroneously orders the matter remanded to the county court without retrial, said order is void insofar as it purports to vest the county court with jurisdiction to grant such new trial and can be set aside at a succeeding term without notice to the parties. Such an order, however, is not void insofar as it relinquishes the district court's control of the cause as to a matter within the proper scope of the county court's jurisdiction.
2. SAME - Vacation of erroneous order remanding cause to county court not barred by subsequent proceedings.
Under the circumstances of this case, the fact that other proceedings were had in the county court, and the district court, after the erroneous order was made, created no bar of estoppel or abandonment to the subsequent vacation of that order.
Original proceeding for writ of prohibition by the State ex rel. Ida Mae Jones, executrix of the estate of Andrew Jones, against the District Court of Muskogee County; E.A. Summers, Judge. Writ denied.
Charles A. Chandler, of Cleveland, Ohio, for relator.
Thos. W. Leahy and W.J. Crump, both of Muskogee, for respondents.
¶1 This is an original proceeding in this court for a writ of prohibition to prevent the district court of Muskogee county, Okla., and District Judge E.A. Summers, presiding in division No. I of said court, from acting further in a controversy which arose in proceedings originally instituted in the county court of said county to probate the will of Andrew Jones, deceased.
¶2 From the county court's order decreeing distribution of said estate and approving the final report of Ida Mae Jones, executrix thereof, certain of the Jones heirs lodged an appeal, docketed as cause No. 29409, in the respondent district court. After a trial de nove the district court, acting through Judge Summers, held in part that Ida Mae Jones did not take under the will and by said judgment she was removed as executrix and replaced by Dewey Dinwiddie, now Grimmett, as administratrix with will annexed.
¶3 On an appeal to this court (In re Jones' Estate, 195 Okla. 168, 155 P.2d 980) Ida Mae was held subjejct to removal but the district court's judgment was reversed on other grounds and said cause remanded to said court, with directions to grant a new trial and to determine the cause in a manner not inconsistent with the views set forth in said opinion.
¶4 After the mandate was issued (In re Jones' Estate, supra) the district court, still acting through Judge Summers, entered an order in March, 1945, directing said mandate to be spread of record and also remanding the cause to the county court.
¶5 Thereafter, in the original probate proceedings, Dewey Dinwiddie obtained an order from the county court in which said court purported to "concur" in the district court's appointment of her as administratrix with will annexed. This order was insufficient. The county court under such remand should have exercised its exclusive and original jurisdiction to determine the question of removal or suspension of Ida Mae Jones and the appointment of her sucessor. Parker et al. v. Lewis, 45 Okla. 807, 147 P. 310; In re Kelly's Estate, 132 Okla. 21, 269 P. 282.
¶6 Upon Ida Mae's refusal to relinquish possession and control over certain items of property she claimed belonged to her personally, rather than to the estate, Dewey Dinwiddie obtained an order directing her, as administratrix with the will annexed, to institute an action against Ida Mae in a court of competent jurisdiction to determine the question of title Ida Mae had raised.
¶7 Acting upon said order said administratrix commenced cause No. 30553 in the district court of Muskogee county, but upon a hearing therein, the Hon. O.H.P. Brewer district judge, presiding in division No. 2 of said court, ruled that she was without capacity to maintain such an action and dismissed her petition. This judgment was correct for the reason that the county court had not by proper or sufficient order removed or suspended Ida Mae, nor had said court by proper procedure and order properly appointed Dewey Dinwiddie as her successor.
¶8 Thereafter, in December, 1945, the district court, again acting through Judge Summers, entered a new order in cause No. 29409 vacating, as an inadvertent error, its former order of March of that year purporting to remand said cause to the county court and setting same for a new trial before him on January 9, 1946. Two days previous to said date, Ida Mae Jones, still purporting to act as executrix of the Jones' estate, filed the present proceedings in this court and cause No. 29409 of the district court has been held in abeyance pending our decision herein.
¶9 In her present application for a writ of prohibition, relator...
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