State ex rel. O'Sullivan v. District Court of Tenth Judicial Dist. in and for Fergus County

• Decision Date: 21 December 1946
• Docket Number: 8693.
• Citation: 175 P.2d 763,119 Mont. 429
• Parties: STATE ex rel. O'SULLIVAN v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.
• Court: Montana Supreme Court

175 P.2d 763

119 Mont. 429

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

No. 8693.

Supreme Court of Montana

December 21, 1946

Petition by the State, on the relation of Francisca O'Sullivan against the District Court of the Tenth Judicial District of the State of Montana in and for the County of Fergus, and the Honorable Stewart McConochie, District Judge thereof, for writ of supervisory control of contest of the competency of Katherine Simpson, as executrix of the estate of George L Laux.

Petition denied.

Emmet O'Sullivan, of Harlowton, and Howard C. Gee, of Lewistown, for relator.

Oscar M. Ulsaker, of Lewistown, for respondents.

CHEADLE Justice.

On petition for writ of supervisory control.

The petition alleges that one George L. Laux died in November 1944, leaving a will by which he devised and bequeathed all of his real and personal property to his nine brothers and sisters, including the relator herein, share and share alike and in which he nominated one Katherine Simpson, a sister, as sole executrix without bond.

The executrix named in due course filed her petition for probate of the will and issuance to her of letters testamentary, listing therein certain personal property of the stated value of $42,299.30. The assets listed include promissory notes executed by the executrix and her husband in the total amount of $1,320. Thereafter the relator filed objections to the granting of letters testamentary to Katherine Simpson, alleging numerous facts upon which she bases her conclusion that the petitioner is incompetent to act as executrix by reason of her improvidence, want of integrity and lack of understanding. Among the allegations which may be considered material are that petitioner, her husband, father and mother, have wrongfully and unlawfully converted certain assets of the estate, not listed, of the value of $3,000; that petitioner failed to list additional personal property belonging to the estate valued at $10,000, all of which will be wrongfully and unlawfully appropriated by petitioner and the other persons last mentioned; that petitioner and her husband are in reality indebted to the estate to the extent of $3,000, instead of $1,320 listed, and will defraud the estate of the difference; that petitioner is wasting the estate by failure to avail herself of the legal services of relator's husband, an attorney, who has offered to perform legal services for the estate without charge or fee; that petitioner was an accessory after the fact in the commission of the crime of grand larceny by her husband within the past five years; that petitioner is credulous and gullible, inexperienced in business and easily influenced and imposed upon; that she is under the complete dominance and control of her husband and parents, and that it appointed will be controlled and directed by them in the handling and disposition of the estate, with the result that the assets will be wrongfully converted, wasted and destroyed.

After issues were joined on the objections and more than three days prior to the date set for the hearing thereon, relator duly filed a written demand that such issues be tried by a jury, which demand was overruled and denied by the trial court. By order dated July 15, 1946, the matter was set for trial before the court, without a jury, on September 4, 1946, whereupon the petition before us was filed.

The primary question presented is whether the circumstances warrant or justify issuance of the writ, to control the litigation in the trial court. Supervisory control is an extraordinary remedy, to be exercised only in extraordinary circumstances. We have said in a recent decision (State ex rel. Barron v. District Court of the Thirteenth Judicial Dist. in and for Stillwater County, 174 P.2d 809), that to justify such a writ an exigency or emergency must be shown to exist, or that a gross injustice would result from a denial of the writ, and the absence of other adequate relief. Under the provisions of Article VIII, section 2, of the Montana Constitution, and section 8882, Revised Codes, this court is given supervisory power to control the course of litigation in the trial courts in proper cases, including cases where relief by appeal is not available or would be inadequate. One of the earlier discussions of the function of the writ is found in State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 562, 63 P. 395, 400. 'As the appellate jurisdiction was granted for the purpose of revision and correction, and the original jurisdiction under these writs was granted to enable us to render such relief as is appropriate under them, so the supervisory power was granted to meet emergencies to which those other powers and instrumentalities are not commensurate. It is independent of both, and was designed to infringe upon the functions of neither. It has its own appropriate functions, and, without undertaking to define particularly what these functions are, we think one of them is to enable this court to control the course of litigation in the inferior courts where these courts are proceeding within the jurisdiction, but by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate.' State ex rel. Anaconda Copper Min. Co. v. Second Judicial District Court, 25 Mont. 504, 65 P. 1020.

In State ex rel. Bonners Ferry Lumber Co. v. District Court of Second Judicial Dist. in and for Silver Bow County, 69 Mont. 436, 438, 222 P. 1050, this court said: ' In State ex rel. Hennessy v. District Court [of Second Judicial Dist.], 26 Mont. 274, 67 P. 625, the writ was sought to annul an order of the trial court refusing the petition of a litigant for a survey and inspection of the underground workings of a mine. In denying the application the court said: 'The question involved, it properly reserved, may be reviewed on appeal from the judgment finally rendered in the cause, and no exigency is shown requiring immediate interference by this court.''

In State ex rel. Harris v. District Court, 27 Mont. 280, 70 P. 981, 982, a similar writ was sought to correct an alleged error of the trial court in sustaining an objection to the introduction of evidence in the principal action. In denying the petition, this court said: 'The writ of supervisory control cannot be successfully invoked, for it may be employed only in exigent cases to remedy manifest wrongs which cannot be otherwise righted. * * * Should the writ issue upon the present application, it would lie to correct each and every mistake of district courts, and in great measure supplant the ordinary appeal. Such is not its office.' For citation of numerous authorities to similar effect, see State ex rel. Barron v. District Court, supra . Therein we said: 'No compelling reason has been here shown for the issuance of the writ applied for. It does not appear that any injustice to the relators may not be corrected by appeal from the final judgment or decree. The circumstances do not indicate an exigency or emergency beyond that which might frequently result from an erroneous ruling by a trial court in the course of litigation, which may be remeded upon appeal; neither has it been shown that a gross injustice would result from denial of the writ. Since the relators have other adequate remedy, it follows that the petition must be denied and it is so ordered.'

While the order now complained of is not itself appealable, section 9731, Revised Codes, expressly grants the right of appeal from the trial court's decision and...