State ex rel. O'Sullivan v. District Court of Tenth Judicial Dist. In and For Fergus County, 9292

• Decision Date: 08 May 1953
• Docket Number: No. 9292,9292
• Citation: 256 P.2d 1076,127 Mont. 32
• Parties: STATE ex rel. O'SULLIVAN v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.
• Court: Montana Supreme Court

Page 1076

256 P.2d 1076

127 Mont. 32

STATE ex rel. O'SULLIVAN v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.

No. 9292.

Supreme Court of Montana.

May 8, 1953.

Order May 21, 1953.

Emmet O'Sullivan, Harlowton, for relatrix.

Floyd O. Small and Clayton R. Herron, Helena, for respondents.

ANGSTMAN, Justice.

This is an original application for a writ of mandate to require Judge McConochie to call in Judge Watts of Musselshell county to preside over a certain probate proceeding pending in Fergus county. The facts set out in the application are these: George L. Lux died in November 1944 in Fergus county, leaving a last will and testament devising and bequeathing his property to his nine brothers and sisters, share and share alike and in which Katherine Simpson was named as executrix; by agreement the will was admitted to probate and Katherine Simpson was appointed as executrix; thereafter and in August 1946 relatrix as one of the legatees and devisees filed an affidavit disqualifying Judge McConochie the resident judge, on the ground of imputed bias and prejudice; in July 1947 Judge McConochie made an order calling in Judge Derry of Yellowstone county to preside in the probate matter, who thereupon assumed jurisdiction; in December 1952 Judge Derry made an order withdrawing from the case; relatrix thereafter through her counsel made repeated requests of Judge McConochie that he appoint Judge Watts under R.C.M.1947, § 91-2001, to assume jurisdiction in the proceeding, as he is the judge nearest to Lewistown; although there were matters in said estate ready for hearing and although Judge McConochie promised to call in another judge to hear them, he did not do so and on April 13, 1953, relatrix made this application to this court; on April 14th, and before this court issued its alternative writ, Judge McConochie made an order appointing Judge Watts to assume jurisdiction in the estate.

Counsel for relatrix contends, however, that he has not yet received that which he sought and which he is entitled to because Judge McConochie made his order under R.C.M.1947, § 93-901, instead of under R.C.M.1947, § 91-2001, and in consequence he is fearful that Judge Watts may in the passage of time find it to his advantage to relinquish jurisdiction as did Judge Derry. That, he contends, is the effect of an appointment under section 93-901, whereas he contends when the appointment is made under section 91-2001 the judge assuming jurisdiction must see it through to a conclusion, and relatrix desires to procure the appointment of a judge who will retain jurisdiction throughout the proceeding.

Is relatrix entitled to the appointment of a judge under R.C.M.1947, § 91-2001? That section reads: 'No will shall be admitted to probate, or letters testamentary or of administration granted, before any judge who is interested as next of kin to the decedent, or as legatee or devisee under the will, or when he is named as executor or trustee in the will, or is a witness thereto, and any judge who shall have acted as attorney for the decedent in the preparation or drawing of the will, or as the attorney of the executor or administrator of the estate of any deceased person, in the administration of the estate of such deceased person, or as the attorney of any legatee or devisee under the will, or heir of the decedent, or of any person or persons claiming to be such legatee, devisee, or heir, shall, from and after the approval of this act, be disqualified from making any order, or rendering any judgment or decree, or doing anything whatsoever in the matter of the estate of such deceased person. Whenever it shall be made to appear of record that any judge presiding in any court in which proceedings in probate matters have been, or are about to be, instituted, is disqualified from acting therein, it shall be the duty of such judge to, as soon thereafter as practicable, request the nearest district judge to preside in the place of the judge so disqualified in such proceedings. It shall be the duty of the judge so requested, if he be not himself disqualified, to, from time to time as occasion may require, preside in the place of the disqualified judge in all proceedings in such probate matters.'

It is to be noted that this section in substance and effect disqualifies a judge when he is interested in the estate or has served as attorney for an interested party. It has nothing to do with disqualification for imputed bias or prejudice.

Counsel for relatrix relies upon the case of State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 P. 244, 247, as sustaining his right to the appointment of Judge Watts under R.C.M.1947, § 91-2001. In that case the court said: 'Section 180 [Code Civ.Proc.1895, now R.C.M.1947, § 93-901], as amended, therefore, must apply to all proceedings provided for in the Code of Civil Procedure, unless a special provision is found in some part of it in conflict with that section, or the nature of the proceeding does not permit such application. Nor is section 2530, supra [Code of Civ.Proc.1895, now R.C.M.1947, § 91-2001], either at first enacted or as amended (Sess. Laws 1897, p. 244), in conflict with any provision contained therein. Such additional disqualifications as are declared in the act of 1897 are to be regarded as merely cumulative in character, and not exclusive.'

The contention made in the Nissler case was that disqualification of a judge for imputed bias and prejudice under what is now R.C.M.1947, § 93-901, could not be made in a probate matter. The language of the court above referred to is in answer to that contention and the court merely held that a judge may be disqualified for imputed bias and prejudice in a probate matter.

Neither that case nor any other that has...