State ex rel. Reid v. District Court of Fifth Judicial Dist. in and for Madison County

• Decision Date: 24 April 1953
• Docket Number: No. 9273,9273
• Citation: 256 P.2d 546,126 Mont. 586
• Parties: . IN AND FOR MADISON COUNTY et al. Supreme Court of Montana
• Court: Montana Supreme Court

Page 546

256 P.2d 546

126 Mont. 586

STATE ex rel. REID v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MADISON COUNTY et al.

No. 9273.

Supreme Court of Montana.

April 24, 1953.

Ralph J. Anderson, Helena, Frank E. Blair and John M. Comfort, Virginia City, for appellant.

Wellington D. Rankin and Arthur P. Acher, Helena, Lyman H. Bennett, Jr., Charles L. Zimmerman, Virginia City, for respondents.

ADAIR, Chief Justice.

On March 17, 1950, the relator George H. Reid instituted this proceeding for the administration of the estate of Margaret G. Reid, deceased, by filing in the district court of the fifth judicial district of the state of Montana, in and for the county of Madison, a petition for the appointment of relator as special administrator of the estate and a petition for the admission to probate, as decedent's last will, of a certain writing dated November 3, 1941, nominating and appointing relator as executor. See State ex rel. Reid v. District Court, Mont., 255 P.2d 693.

Disqualification of Judge Bennett. The Honorable Lyman H. Bennett, Sr., Judge presiding in the above district court, prior to his election to the bench and while engaged in the private practice of law, having acted as attorney for the decedent in the preparation of the writing so offered for probate, being disqualified in the proceeding, called in the Honorable Benjamin E. Berg, district judge of the sixth judicial district of the state of Montana to preside in his place and stead pursuant to the provisions of R.C.M.1947, § 91-2001.

Disqualification of Judge Berg. On the date of the making of the order so requesting him to preside in the proceeding, Judge Berg accepted jurisdiction whereupon, on March 18, 1950, the relator George H. Reid filed an affidavit of disqualification against Judge Berg for imputed bias under the provisions of R.C.M.1947, § 93-901, subd. 4.

Transfer of Proceeding to Silver Bow County. Thereupon, on March 24, 1950, Judge Bennett, acting under the authority of R.C.M.1947, § 91-2002, made and filed an order directing that the proceeding be transferred to the district court of the second judicial district of the state of Montana, in and for the county of Silver Bow, pursuant to which order all papers, files and matters in the proceeding were transferred to the latter court whereupon the Honorable T. E. Downey, a judge of said court, assumed jurisdiction of the proceeding and thereafter made an order appointing relator special administrator of decedent's estate.

On April 10, 1950, Alvin F. Reid and Almon G. Reid filed in the district court of Silver Bow county a contest challenging the validity of decedent's claimed will so offered for probate and, following a jury trial, judgment on the verdict was entered on May 16, 1951, adjudging the alleged will to be invalid and refusing to admit it to probate.

No appeal was taken from such judgment and in July 1951, sixty days after its entry, it became final. Thereafter Alvin F. Reid and Almon G. Reid petitioned for and were granted general letters of administration in the estate.

Disqualification of Judge Downey. In July 1952, the relator George H. Reid made and filed an affidavit disqualifying Judge Downey for imputed bias under the provisions of R.C.M.1947, § 90-901, subd. 4, whereupon Judge Downey made an order calling in the Honorable John B. McClernan, he being the other judge of the second judicial district in and for the county of Silver Bow.

Thereafter the governor, by executive order given August 30, 1952, appointed the Honorable John Collins Judge of the fifth judicial district to fill the vacancy occasioned by the resignation of the Honorable Lyman H. Bennett, Sr., as judge of such district.

Next, and pursuant to an order given by Judge McClernan, all papers and files in the proceeding were sent back to the district court of the fifth judicial district in and for the county of Madison.

On September 9, 1952, a petition was filed in the proceeding seeking an order determining and allowing attorneys' fees for the three attorneys representing the general administrators, Alvin F. Reid and Almon G. Reid.

Disqualification of Judge Collins. On December 12, 1952, Almon G. Reid, one of the general administrators of the estate, filed in the office of the clerk of the district court of Madison county, an affidavit of disqualification against Judge Collins for imputed bias under the provisions of section 93-901, subd. 4, supra.

On December 24, 1952, Judge Collins made and filed an order calling in the Honorable John B. McClernan, then and now a judge of the district court of Silver Bow county, to hear and determine the matters pending in the matter of said estate.

On December 29, 1952, Judge McClernan, by written acceptance thereafter filed in the office of the clerk of the district court of Madison county, accepted the call and for a second time assumed jurisdiction of the proceeding.

Thereafter the Honorable Philip C. Duncan Succeeded Judge Collins as district judge of the fifth judicial district, Judge Duncan having been elected for a four-year term commencing on January 5, 1953.

Thereafter the petition for allowance of attorneys' fees was set for hearing before Judge McClernan for January 21, 1953, and notice thereof was served upon George H. Reid's counsel.

Affidavit of Disqualification Against Judge McClernan. On January 12, 1953, the relator George H. Reid filed an affidavit of disqualification against Judge McClernan for imputed bias under the provisions of section 93-901, subd. 4, supra.

Notice of Motion to Strike Affidavit. On January 14, 1953, counsel for the general administrators, Alvin F. and Almon G. Reid, served and filed written notice that on January 21, 1953, they would present to the court a motion for an order to strike from the files the above affidavit of disqualification so directed against Judge McClernan, asserting that the affidavit is void and of no effect for the reason that the relator George H. Reid had already disqualified two district judges for imputed bias in the proceeding and was and is prohibited by the provisions of R.C.M.1947, § 93-901, subd. 4, from disqualifying a third judge on such ground.

Disqualifying Affidavit Stricken. On January 21, 1953, Judge McClernan heard, considered and granted the motion to strike the affidavit of disqualification so directed against him, following which Judge McClernan proceeded to hear the petition for the allowance of attorneys' fees for counsel representing the general administrators which matter the judge then took under advisement with the announcement that his ruling and decision thereon would be given upon his return to the district on January 29, 1953.

Also on January 21, 1953, the general administrators filed a petition seeking a court order for the allowance to them of administrators' fees and such petition was thereupon set for hearing for January 29, 1953.

Original Proceeding No. 9273. On January 24, 1953, and prior to the making of any ruling by the court on either the petition for the allowance of fees for the attorneys or on the petition for the allowance of fees for the general administrators, the relator George H. Reid filed in this court the instant original proceeding No. 9273, seeking a writ of prohibition to be directed against the respondents, the district court of Madison county and the Honorable John B. McClernan, as district judge therein presiding, in the matter of the administration of decedent's estate, commanding respondents to reinstate relator's affidavit of disqualification so directed against Judge McClernan and commanding that such judge cease and desist from assuming jurisdiction or continuing to assume jurisdiction or to pass upon any matter or thing in the matter of decedent's estate or to show cause why he does not do so. Upon the filing of relator's petition therefor this court caused an alternative writ of prohibition to issue to which respondents interposed a motion to quash contending that relator's petition fails to state facts sufficient to show him to be entitled to the writ or to the relief sought.

In this jurisdiction, judicial remedies administered by the courts of justice or by judicial officers are divided into two classes, namely, (1) actions, and (2) special proceedings. R.C.M.1947, §§ 93-2201 and 93-2202.

'An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.' R.C.M.1947, § 93-2203.

'Every other remedy is a special proceeding.' R.C.M.1947, § 93-2204.

State ex rel. Carleton v. District Court, 33 Mont. 138, 142, 82 P. 789, 8 Ann.Cas. 752, holds that all proceedings to enforce a remedy, not falling technically under the statutory definition of the term action, § 93-2203, are classed under the head of 'special proceedings.' § 93-2204, supra. See State ex rel. City of Miles City v. Northern Pac. Ry., 88 Mont. 529, 550, 295 P. 257.

The administration of an estate of a deceased person is neither an action at law nor a suit in equity but it is a special proceeding.

A proceeding for the administration of an estate of a deceased person advances step by step through various stages of the proceeding and involves successive determinations in the course of such proceeding. In re Dougherty's Estate, 34 Mont. 336, 343, 86 P. 38.

The term 'proceeding' is used in the Probate Code as a general designation of the entire judicial procedure employed whereby the law is administered upon the various subjects within the probate jurisdiction. In re McFarland's Estate, 10 Mont. 445, 452-455, 26 P. 185, 189.

R.C.M.1947, § 91-4311, provides that except as otherwise provided in Title 91, R.C.M.1947, the provisions of Title 93, R.C.M.1947, are applicable to and constitute the rules of practice in the proceedings mentioned in Title 91, supra, in which title are mentioned,...