State ex rel. Sheehan v. District Court of Fourth Judicial Dist., In and For Johnson County

• Decision Date: 13 April 1967
• Docket Number: No. 3584,3584
• Parties: The STATE of Wyoming ex rel. Velma Moore SHEEHAN, Petitioner, v. The DISTRICT COURT OF the FOURTH JUDICIAL DISTRICT, IN AND FOR JOHNSON COUNTY, and the Honorable John P. Lisley, Judge thereof, Respondents.
• Court: Wyoming Supreme Court

Page 431

426 P.2d 431

The STATE of Wyoming ex rel. Velma Moore SHEEHAN, Petitioner, v. The DISTRICT COURT OF the FOURTH JUDICIAL DISTRICT, IN AND FOR JOHNSON COUNTY, and the Honorable John P. Lisley, Judge thereof, Respondents.

No. 3584.

Supreme Court of Wyoming.

April 13, 1967.

Edward E. Murane, R. R. Bostwick, George G. Greenlee, Casper, for petitioner.

Wm. H. Brown of Brown, Drew, Apostolos, Barton & Massey, Casper, for respondents.

Before GRAY, McINTYRE, and PARKER, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

This is an original proceeding in which Velma Moore Sheehan asks the supreme court to prohibit the district court of Johnson County, Fourth Judicial District, and district judge John P. Ilsley from proceeding further in connection with a civil action lodged against her in that court. The petitioner is one of three joint executors of the estate of Thomas C. Moore, deceased, her former husband. The other two joint executors are brothers of the deceased.

It is the claim of petitioner that she, while a resident of California and a nonresident of Wyoming, made application to the probate court of Johnson County for a widow's allowance; that she came to Wyoming as a witness to testify in behalf of her application; and that when she entered the courthouse of Johnson County for that purpose she was served with a summons requiring her to answer to a civil action brought by the two brothers of decedent. The brothers brought the action as co-executors of the estate of Thomas C. Moore, deceased, and as next friends of Jock Moore and Bret Moore, the minor children of deceased and petitioner. Such action was initiated July 26, 1966, in the district court of Johnson County as Civil No. 3927.

According to an amended complaint the plaintiffs, in their action against Mrs. Sheehan, are alleging in a first count that she unlawfully caused or procured her husband Moore's life to be taken by David R. M. Martin, who has been convicted of the murder of Thomas C. Moore. This count shows the cause of action therein asserted is based upon § 2-46, W.S.1957, and brought under the Uniform Declaratory Judgments Act, §§ 1-1049 to 1-1064, W.S.1957. A second count of the amended complaint alleges that Velma Moore Sheehan is liable in damages for the wrongful death of her husband Moore.

The prayer of the amended complaint is for a declaratory judgment that Velma Moore Sheehan is not entitled to inherit or take by devise or legacy any portion of the estate of Thomas C. Moore, nor retain any portion of the proceeds of any life insurance policy, nor take any other benefits arising upon the death of Thomas C. Moore. Also, judgment against the defendant is asked for the wrongful death of decedent.

The grounds upon which Mrs. Sheehan seeks to obtain a permanent prohibition are these:

1. That the respondent court and judge have no jurisdiction of the person of the petitioner.

2. That the district court of Johnson County, as a civil, has no jurisdiction over the subject matter of the first count of plaintiffs' amended complaint.

3. That no action can be brought against petitioner in connection with the first count of plaintiffs' amended complaint, unless and until the petitioner is first convicted of feloniously causing or procuring another to feloniously take the life of Thomas C. Moore.

4. That the respondent judge and court have no jurisdiction to proceed in the wrongful death count of the amended complaint because such a suit is prohibited by law.

Jurisdiction of the Person

Before defendant-Mrs. Sheehan can claim the district court of Johnson County has no jurisdiction over her person, she must first establish that she was a nonresident of Wyoming when served with process. She stands on the proposition that nonresidents are immune from service of process while volutarily attending the trial of a matter in which the nonresident is a witness. State ex rel. Brainard v. District Court, Eighth Judicial District In and For Natrona County, 34 Wyo. 288, 243 P. 123; and 42 Am.Jur., Process, § 142, are cited as authority for the rule relied upon.

Before confirming or denying the correctness of the rule of law relied upon, we should see whether the defendant has made a sufficient showing of nonresidency in Wyoming to justify use of the extraordinary writ of prohibition.

The petition for prohibition was signed on behalf of Mrs. Sheehan by her attorneys Edward E. Murance and R. R. Bostwick each of whom verified the petition to be true 'as he verily believes.' One of the allegations of the petition is that petitioner was a resident of California when served with process in civil case No. 3927. Also, excerpts from a deposition of Mrs. Sheehan have been submitted. In it she stated her permanent address is 433 Casa Verde, Monterey, California.

In contradiction of the claim that Mrs. Sheehan's permanent address is 433 Casa Verde, Monterey, California, respondents have submitted an affidavit by the manager of the apartments at this address. It states Velma Moore Sheehan and Frank O. Sheehan became tenants of an apartment there in July, 1966, and that in December, 1966, they moved from the premises as Mr. Sheehan was transferred to Germany for military duty. Also, the deposition indicates there was a mutual agreement of counsel on the time and place for Mrs. Sheehan's deposition, because of her reported early departure for Germany where her husband is in the service.

We cannot overlook the fact that the petition for prohibition alleges Mrs. Sheehan is a co-executor in Wyoming of the estate of Thomas C. Moore; that on July 26, 1966, she appeared in the district court of Johnson County, 'in her capacity as a co-executor'; and that she was served at that time with summons and complaint in civil case No. 3927.

Section 2-52, W.S.1957, requires that whenever it shall appear to the judge having jurisdiction that any individual named as an executor is not a resident of this state, the court shall require such executor to designate some resident or some bank or trust company of the state as agent or attorney, upon whom any process issued out of the 'courts' of this state may be served, which service shall have the same force and effect as if served upon such person, nonresident executor, in person; and if any nonresident executor fails to appoint such agent or attorney, the court shall revoke his authority to act.

Of course, if Mrs. Sheehan really became a nonresident of Wyoming prior to July 26, 1966, she should have caused a resident agent to be named upon whom process issued out of the 'courts' of this state could be served. Having failed to do so, she cannot complain if the court in which civil case No. 3927 was filed considered her a resident. Her failure to comply with § 2-52 at least leaves a presumption against her nonresidency.

Moreover, the petition for prohibition recites that a motion was made on behalf of Mrs. Sheehan, the defendant in civil case No. 3927, as a result of which the district court dismissed five or six counts in the original complaint in civil case No. 3927; and held plaintiffs could file an amended complaint. Such an amended complaint was in fact filed and served on or about October 10, 1966.

Generally speaking, a prima facie presumption of jurisdiction arises from the exercise of it. Thus, it will be presumed, from the action of the district court in hearing and allowing defendant's motion to dismiss certain counts of plaintiffs' complaint in civil case No. 3927 and in allowing plaintiffs to amend, that jurisdiction over the subject matter and parties was rightfully acquired and exercised; and the burden is on the party asserting want of jurisdiction to show such want. See 21 C.J.S. Courts § 96, p. 149; Jackson v. Bobbitt, 253 N.C. 670 117 S.E.2d 806 808; and Wilson v. Duncan, 188 Okl. 456, 110 P.2d 596, 600.

Additional allegations of the petition for prohibition set forth that, following the filing of plaintiffs' amended complaint in civil case No. 3927, Velma Moore Sheehan made a motion in the district court to quash the service of process on the ground that defendant was not subject to service of process because of being a nonresident when process was served. This motion was supported by defendant's affidavit stating she was a resident of California and a nonresident of Wyoming when served with process. The motion, however, was resolved against her, leaving again a presumption that the district court considered and decided against the contention that Mrs. Sheehan was a nonresident of this state.

Any affirmative action of this nature on the part of any court implies that it has ascertained that it had jurisdiction. 21 C.J.S Courts § 96, p. 150; Ross v. Pitcairn, Mo., 179 S.W.2d 35, 37, 153 A.L.R. 215; Wilson v. Duncan, 188 Okl. 456, 110 P.2d 596, 600. See also High v. High, 41 Wash.2d 811, 252 P.2d 272, 274.

In view of the presumptions which arose (1) from Mrs. Sheehan continuing as a resident co-executor of the Moore estate in Wyoming; (2) from the court's exercise of jurisdiction in civil case No. 3927; and (3) from the court's finding against nonresidency in connection with the motion to quash service of process, it is at least doubtful whether the unsupported allegations of petitioner, in her petition and in her affidavit, are sufficient to sustain her burden and to make out a case of nonresidency strong enough for us to invoke the extraordinary remedy of prohibition.

But aside from the question of residency, the petition for prohibition must fail because Mrs. Sheehan, as the defendant in civil case No. 3927, submitted herself to the jurisdiction of the district court in Johnson County and waived her right to object thereto. After being served with summons and complaint in case No. 3927, Mrs. Sheehan at first filed motions against the complaint asserting (1) lack of jurisdiction over the subject matter, and (2) a failure to state a claim upon which relief could be granted in five of...