State ex rel. Regis v. District Court of Second Judicial Dist., Silver Bow County

• Decision Date: 19 March 1936
• Docket Number: 7540.
• Citation: 55 P.2d 1295,102 Mont. 74
• Parties: STATE ex rel. REGIS v. DISTRICT COURT OF SECOND JUDICIAL DIST., SILVER BOW COUNTY et al.
• Court: Montana Supreme Court

55 P.2d 1295

102 Mont. 74

STATE ex rel. REGIS v. DISTRICT COURT OF SECOND JUDICIAL DIST., SILVER BOW COUNTY et al.

No. 7540.

Supreme Court of Montana

March 19, 1936

Original proceeding in the nature of an application for a writ of supervisory control by the State, on the relation of Oscar Regis, directed against the District Court of the Second Judicial District of the State of Montana, in and for the County of Silver Bow, and the Honorable Frank L. Riley, a judge thereof.On motions to quash and to dismiss.

Motions overruled, issuance of peremptory writ denied and proceeding dismissed.

William Meyer, of Butte, for relator.

Eugene Kelly, of Los Angeles, Cal., for respondents.

MATTHEWS Justice.

Original application to this court for an order, under its supervisory power, to annul an order of the district court of Silver Bow county vacating an award of extraordinary executor's fees in the matter of the estate of W. A. Clark, III, deceased.

On presentation of the relator, Oscar Regis, this court caused to be issued and served upon the respondent judge, Honorable Frank L. Riley, an alternative writ of supervisory control returnable on March 4, 1936; in response thereto there were filed herein a motion to quash the writ on the ground that the application does not state facts sufficient to entitle the relator to any relief, and a motion to dismiss the proceedings on the ground that the relator has a plain adequate, and speedy remedy by appeal from the order attacked.

On motion to quash: On consideration of the application herein the sufficiency of the petition to warrant the issuance of the alternative writ was determined; whether or not the relator is entitled to a peremptory writ will depend upon our determination of the questions presented on the merits.

On motion to dismiss: This court has held that the only appeals permissible in probate matters are those provided for in what is now subdivision 3 of section 9731,Revised Codes 1921, and that, as there is no mention in the statute of an appeal from an order refusing to vacate a decree of settlement of final account and distribution of an estate, no appeal lies from such an order; that the provision for an appeal from an order made after judgment does not apply to probate proceedings ( In re Kelly's Estate,31 Mont. 356, 78 P. 579, 79 P. 244); as a corollary it would seem that no appeal lies from an order vacating such a decree, or a part thereof.

However, we need not here determine the question presented on the ground that no appeal lies.Assuming that an appeal might lie from such an order under certain circumstances, the "supervisory writ," evolved by this court as a necessary consequence of the provision of the Constitution granting to it "general supervisory control over all inferior courts"(section 2, article 8), and of section 8882 of the Revised Codes of 1921, declaring that, in the exercise of granted jurisdiction, if the course of proceeding be not specifically pointed out, any suitable mode of proceeding may be adopted which may appear most conformable to the spirit of the Code, in the absence of any legislative pronouncement on the subject, is employed to correct error within jurisdiction, independent of either the appellate or original jurisdiction declared in article 8 of the Constitution, and is not to be confused with the original writs therein authorized to be issued by this court.State ex rel. Whiteside v. District Court,24 Mont. 539, 63 P. 395.Neither the Constitution nor the Codes restrict the right of this court to issue such a writ; it is in the nature of a summary appeal--a shortcut--to control the course of litigation in the trial court when necessary to prevent a miscarriage of justice (State ex rel. Finley v. District Court,99 Mont. 200, 43 P.2d 682), and may be employed to prevent extended and needless litigation.While, ordinarily, the writ will not be issued when the right of appeal exists, as it is to be used sparingly, the fact that an appeal is available is not conclusive against the writ.State ex rel. Jerry v. District Court,57 Mont. 328, 188 P. 365;State ex rel. Odenwald v. District Court,98 Mont. 1, 38 P.2d 269;State ex rel. Gold Creek Min. Co. v. District Court,99 Mont. 33, 43 P.2d 249.

Here, Judge T. E. Downey, one of the judges of the Second judicial district, by order designated a "judgment," awarded relator, in addition to the statutory fees as executor, $17,383.02 as for "extraordinary services," and ordered the same paid.Two months later Judge Frank L. Riley, the other judge of the district, on motion of Thelma W. Clark, executrix and residuary legatee, annulled the order, and it is shown that action has been instituted in California for the recovery of that amount from Regis.Such action, in a foreign jurisdiction, will complicate and delay the settlement of the estate.The showing is sufficient to move the discretion of this court to the end that neither the award to the executor or the estate shall be wasted by needless litigation.State ex rel. Mannix v. District Court,51 Mont. 310, 152 P. 753;see, also, State ex rel. Smith v. Superior Court,26 Wash. 278, 66 P. 385.The motion to dismiss is overruled.

Counsel for relator contends that Judge Riley acted in excess of, or without, jurisdiction because Mrs. Clark's motion in the district court was to correct the decree of settlement of final account on the ground of inadvertence or fraud, under the provisions of section 10303, Revised Codes of 1921, whereas the allowance of the extraordinary fees is not mentioned in that decree but is contained in the separate order or judgment.While, on the record, counsel's position is technically correct, the so-called "judgment" awarding the fees for extraordinary services must be considered as a part of, and read into, the decree of settlement of the final account of the executors, for the following reasons:

While the statute(section 10287,Rev. Codes 1921) provides for allowance of executor's fees and for further allowance for extraordinary services performed, there is no statutory provision for a special order with respect to such fees; it is but one of the expenses of administration to be reported to the court and taken into consideration in the settlement of the final account.On the hearing for such settlement, the executor must present, under oath, all matters, not theretofore included in a report, to the court, and which affect the condition of the estate.Section 10288, Id.Clearly, therefore, the matter of this allowance, made on the same day, was called to the attention of the court and considered in arriving at the amount remaining in the estate and subject to distribution, as carried forward into the decree of settlement.The order of allowance falls into the same category as other "vouchers" then presented and used in making up the statement of "full amount expended $325,306.42," found in the decree of settlement.In contesting any of the items making up that amount, for "inadvertence or fraud" in securing the approval of the court for the payment of such item, the attack would properly be launched against the final judgment or decree approving the payment, rather than against the intermediate order approving the claim and ordering or permitting its payment.Indeed, it was early said by this court that such fees as are here considered "shall be ascertained, allowed, and paid only upon his final accounting and settlement,"(In re Dewar's Estate,10 Mont. 426, 25 P. 1026, 1029), and, consequently, such an allowance enters into and becomes a part of the decree of settlement even though not specifically mentioned therein.In order to reach the alleged vice of the allowance made Regis, the motion was properly directed against the decree of settlement of the final account under the authority of section 10303, Revised Codes of 1921.State ex rel. Brophy v. District Court,95 Mont. 479, 27 P.2d 509.

If the allowance made was the result of inadvertence on the part of the court, or was induced by fraud, it may be reached in the exercise of supervisory control, otherwise only by appeal.State ex rel. Brophy v. District Court,97 Mont. 83, 33 P.2d 266, 269.

While the motion to set aside that portion of the decree of settlement awarding the extraordinary compensation follows the statute(section 10303, above), by basing the attack on the ground of inadvertence or fraud, it is alleged therein that Thelma W. Clark had no knowledge, notice, or information that application would be made for the additional fees, and that Regis and the attorney for the executors so drafted the notices which were sent to her in New York that she would not know of such application.In her affidavit in support of her motion, Mrs. Clark swore that she was advised that it was not necessary for her to be in Montana at the time of the hearing on May 20, and that, without notice of such application, she had no reason to believe that the protection of her interests would necessitate her presence.

After a hearing on the motion to strike, the court did not, in terms find that either inadvertence or fraud was shown, but vacated the allowance on the ground that Mrs. Clark had no notice of the application for this additional allowance or the hearing thereon.However, the decision is, in effect, a declaration that the allowance was "inadvertently" made."'Inadvertence' means a want of care, inattention, carelessness, negligence, oversight"(State ex rel. Brophy v. District Court, supra), and "an order for the payment of money, by which the property of the heirs *** is to be taken from them, cannot be made without notice and an opportunity to them to be heard"(In re Sullivan's Estate,36 Wash. 217, 78 P. 945, 947); therefore, if in fact no...