State v. Benton

• Decision Date: 03 February 1892
• Citation: 29 P. 425,12 Mont. 66
• Parties: STATE ex rel. SPALDING v. BENTON, District Judge.
• Court: Montana Supreme Court

29 P. 425

12 Mont. 66

STATE ex rel. SPALDING v. BENTON, District Judge.

Supreme Court of Montana

February 3, 1892

Petition by the state ex rel. William L. Spalding for a peremptory writ of prohibition to command Charles H. Benton, district judge of the eighth judicial district, to desist and refrain from any further proceedings in the matter of the administration of the estate of Frederick S. Fish, deceased. On motion of respondent, the petition was dismissed.

McConnell Clayberg & Gunn, for petitioner.

Douglas Martin and Leslie & Downing, for respondent.

BLAKE C.J.

This is an application to the court, upon the relation of William S Spalding, for a peremptory writ of prohibition to command the judge of the district court of the eighth judicial district of the state to desist and refrain from any further proceedings in the matter of the administration of the estate of Frederick S. Fish, deceased. The following facts are recited in the affidavit and exhibits which have been filed Said Fish died intestate November 3, 1891, in the county of Cascade, in this state, and left property in said county, and also in the county of Lewis and Clarke. His heirs at law are two sisters, Sarah E. Spalding, a resident of the county of Lewis and Clarke, and Louisa M. Curtis, a resident of the state of Ohio. Samuel R. Dean was the public administrator of the county of Cascade during the times which are mentioned in the papers, and filed November 11, 1891, in the district court of that county a petition for the letters of administration upon the said estate. Two days thereafter Sarah E. Spalding filed in the district court of said county of Lewis and Clarke for petition that letters of administration upon said estate be issued to William S. Spalding, her husband. William S. Spalding filed at the same time his petition for letters of administration upon said estate. A notice was given November 11, 1891, by clerk of the district court of Cascade county, that a hearing of the petition of Dean was set for the 21st day of November, 1891. A notice was also given November 13, 1891, by the clerk of the district court of Lewis and Clarke county, that a hearing of the petitions of Sarah E. Spalding and William S. Spalding was set for the 25th day of November, 1891. Prior to November 21, 1891, Sarah E. Spalding filed her objections, in writing, in the district court of Cascade county, to the appointment of Dean as the administrator of the estate, and assigned these grounds therefore: "(1) That the claim of Dean, as the public administrator, in the premises was subsequent to get, right, and that her appointee, the said William S. Spalding. (2) That the court has no jurisdiction to grant letters of administration to said Samuel R. Dean, as public administrator, because the time fixed by section 55 of the second division of the Compiled Statutes of Montana for the issuance of letters to the public administrators has not expired. (3) Because this objector, and her appointee, William S. Spalding, had made application for letters of administration upon the estate of Frederick S. Fish, deceased, as shown by their petition, the order of the court fixing the day for the hearing of said petition, and the notice given of said hearing, certified copies of all of which are hereto attached and made a part hereof. (4) Because said Frederick S. Fish, deceased, is, and was at the time of his death, a resident of Lewis and Clarke county, Montana, and left both real and personal property situate therein. Wherefore, and for the foregoing reasons, this objector, Sarah E. Spalding, prays that the petition and application of said Samuel R. Dean for letters of administration upon the estate of Frederick S. Fish, deceased, be dismissed and denied." While these matters were pending, the judge of the district court of Cascade county, upon the application of Sarah E. Spalding, made an order continuing the hearing of the petition of Dean until the 28th day of November, 1891. The district court of the county of Lewis and Clarke, at the hearing of the petitions of Sarah E. Spalding and William S. Spalding, made an order appointing William S. Spalding the administrator of the estate. Afterwards, Sarah E. Spalding filed in the district court of Cascade county supplemental objections to the petition of Dean for letters of administration upon the estate, and alleged: "(1) That the above entitled court has no jurisdiction or power to grant letters to Samuel R. Dean, for the reason that the district court of the first judicial district of the state of Montana, in and for the county of Lewis and Clarke, has by its judgment determined that Frederick S. Fish, deceased, was a resident of Lewis and Clarke county at the time of his death, and has further, by its judgment, appointed W. S. Spalding as administrator of the estate of said Frederick S. Fish, deceased, a certified copy of which is hereto annexed and made a part of this petition. (2) And the objector, Sarah E. Spalding, hereby presents said order and judgment, a certified copy of which is hereto attached, as an objection to the appointment of Samuel R. Dean as the administrator of said estate of Frederick S. Fish, deceased. Wherefore, your petitioner prays that the application and petition of said Samuel R. Dean for letters of administration upon the estate of Frederick S. Fish, deceased, be dismissed." The objections were overruled, and the district court of Cascade county made an order November 28, 1891, for the appointment of said Dean as such administrator. A motion was filed in said court for an order requiring Dean to account for, pay, and deliver the property belonging to said estate which was in his hands, or under his control, to William S. Spalding, as such administrator. This motion was overruled without prejudice to the right of William S. Spalding to make another application of like character. It appears from the inventory and appraisement, which were filed in the district court of Cascade county, that said Fish left therein personal property of the value of $2,100.50. The district court of Cascade county has made an order directing the sale of this property, and Dean, as the administrator of said estate, has published notices that he will sell a certain portion thereof on the 6th day of February, 1892. It is alleged in the affidavit that the district court of Cascade county will, unless a writ of prohibition be issued, continue to do and perform all judicial acts in the administration of the estate. In the order for the appointment of Dean as such administrator, it is judged and decreed that said Fish "was a resident of the county of Cascade, state of Montana, at the time of his death; and that he left estate in the said county of Cascade, and within the jurisdiction of this court." The order appointing said Spalding to be such administrator also adjudges and decrees that said Fish "was a resident of Lewis and Clarke county at the time of his death; and that he left estate in the said county of Lewis and Clarke, and within the jurisdiction of this court." The counsel for the respondent has moved to quash the writ for the following reasons: That the relater has a plain, speedy, and adequate remedy by appeal; that no appeal has been taken from the order appointing Dean to be the administrator; that he want of jurisdiction has not been pleaded in the district court

of the eighth judicial district; and that no cause of action has been stated.

The Code of Civil Procedure declares that the writ of prohibition "arrests the proceedings of any tribunal *** when such proceedings are without or in excess of the jurisdiction of such tribunal. *** Section 579. This writ "may be issued by any court *** to an inferior tribunal *** in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law." Section 580. Are the foregoing proceedings of the district court of Cascade county without or in excess of its jurisdiction? It will be observed upon an examination of the records that there is a conflict in the orders of the respective courts concerning the jurisdictional fact of the residence of Fish, at the time of his death. The evidence which was submitted to both tribunals, and upon which the jurisdiction to appoint an administrator is founded, is not before us, and we are unable to decide this fundamental proposition. The administration of the estate of Fish was within the jurisdiction of one district court only, and could not be lawfully administered under the supervision of these two tribunals for the counties of Cascade and Lewis and Clarke, which constitute separate and distinct judicial districts. This is not a subject of concurrent jurisdiction of the district courts of those counties. Our statute and the authorities concur respecting the use and extent of this writ. Mr. Justice GRAY, in Smith v. Whitney, 116 U.S. 167, 6 S.Ct. 570, said: "A write of prohibition is never to be issued unless it clearly appears that the inferior court is about to exceed its jurisdiction. It cannot be made to serve the purpose of a writ of error or certioraris to correct mistakes of that court in deciding any question of law or fact within its jurisdiction. *** It is often said that the granting or refusing of a writ of prohibition is discretionary, and therefore not the subject of a writ of error. That may be true, where there is another legal remedy, by appeal or otherwise, or where the question of the jurisdiction of the court whose action is sought to be prohibited is doubtful, or depends on facts which are not made matter of record, or where a stranger, as he may in England, applies for the writ of prohibition." Chief Justice SHAW, in Washburn v. Phillips, 2 Metc. (Mass.) 299, said: "Unless it appears upon the face...