State v. District Court of Second Judicial Dist. in and for Silver Bow County
| Citation | 272 P. 525,83 Mont. 400 |
| Decision Date | 14 December 1928 |
| Docket Number | 6411. |
| Parties | STATE ex rel. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al. HAHN et al. |
| Court | United States State Supreme Court of Montana |
Application by the State, on the relation of Martha Hahn, and Judith Green, for a writ of certiorari to review the action of the District Court of the Second Judicial District in and for Silver Bow County, Jeremiah J. Lynch, Judge, in vacating a judgment entered after default. Writ quashed.
Earle N. Genzberger, Alexander Levinski, and Henry C. Levinski, all of Butte, for respondents.
This is an original proceeding in certiorari to review the action of the district court of Silver Bow County and Jeremiah J Lynch, one of its judges, in vacating a default and a judgment entered after default in a probate proceeding.
From the record before us, the following facts clearly appear: On March 15, 1926, the relatrices herein, Martha Hahn and Judith Green, as heirs at law of Louis Bernheim, deceased, filed in the above-named district court a petition to have the question of heirship in the Bernheim estate determined, and as plaintiffs, commenced an action to have the probate of the will of Louis Bernheim, theretofore granted, revoked, and the instrument admitted to probate declared void.
On the petition filed, notice, requiring all persons claiming an interest in the estate mentioned, whether named or unnamed to appear and assert their claims on or before May 17, 1926, was duly published in the manner of publication of summons in a civil action. The petition purported to name all heirs at law of Louis Bernheim, and those named entered their appearance and set up their claims in response to the notice, and issue was joined in the action to contest the will; the two matters were thereafter heard jointly before the court sitting without a jury, which hearing resulted in a judgment declaring all dispositive provisions of the will invalid and declaring that the entire estate is to be distributed according to the laws of succession, and therein fixing the proportion of the estate to be distributed to each of the persons found therein to be an heir at law of Louis Bernheim. This judgment was entered April 22, 1927, and, in due time, appeals were perfected therefrom and the matter was presented to this court, with the result that the judgment was modified by decision promulgated April 5, 1928. In re Bernheim's Estate (Hahn v. Bernheim), 82 Mont. 198, 266 P. 378.
Remittitur from this court was filed in the district court on April 18, 1928, which remittitur required the district court to modify its judgment in accordance with the opinion of this court, and, as modified, to make the same its judgment in the cause, and commanding that "such further proceedings be had in the cause as, according to right and justice, and the laws of the State of Montana ought to be had, not inconsistent with the opinion hereto attached." Pursuant thereto the district court entered its modified judgment on April 18, 1928. There has been no distribution of the estate, and no further proceedings have been had, except as next noted.
On April 11, 1928, Ida Marie Levitan and Rosa Rosenstein, residents of Libau, Latvia (Russia), filed in the district court in which the matter of the estate of Louis Bernheim was pending, a written motion praying the court to set aside the default entered against all unnamed persons not appearing in the heirship matter, and the judgment of April 22, 1927, as to them and to permit them to answer therein. This motion was supported by an affidavit, and was accompanied by a tendered answer, in which it is alleged that the movants are sisters of Louis Bernheim, deceased, and entitled to share in the distribution of his estate; that in the petition to prove heirship, Ida Marie Levitan, under the name of Mary Bernheim, is alleged to have died in the year 1915 and Rosa Rosenstein is not mentioned at all; that they did not learn of the death of Louis Bernheim until some time in the summer of 1927, after the entry of the judgment of April 22; and that they acted with all due diligence thereafter in bringing their claims to the attention of the court.
Notice of this motion and the time of hearing thereon was served upon all parties to the heirship proceeding, and certain of the Bernheim heirs made timely objection to the granting of the motion. After the entry of the modified judgment, movants filed a supplementary motion of date April 26, 1928, in order to render the motion applicable to the modified judgment, to which the appearing heirs filed a supplemental "answer."
A hearing was had on the motion in May, and the matter taken under advisement by the court, and thereafter, on September 5, 1928, the court granted the motion in toto, but on condition that the movants pay to Martha Hahn and Judith Green the sum of $600 and to certain other heirs the sum of $300 "as and for attorneys' fees" within 30 days. Within the time specified, the movants complied with the terms imposed so far as the other heirs are concerned, and tendered to Martha Hahn and Judith Green the sum of $600, which tender was refused, and thereupon they, as relatrices herein, secured the issuance from this court of a writ of review directed to the district court and the judge thereof, who made the order of September 5, 1928, made returnable October 15, 1928. On the return day respondents appeared by counsel for Levitan and Rosenstein and moved to quash the writ on the grounds that the petition therefor did not state facts sufficient to entitle relatrices to the relief sought, and lack of jurisdiction in this court to issue the writ, but they nevertheless made the required return in order that the matter might be fully submitted at that time, and, after argument, the matter was duly submitted for our final determination, both upon the motion to quash and upon the merits.
1. Counsel for respondents first urge, in support of their motion to quash the writ, that the application for the writ does not show what interest, if any, the relatrices have in the proceeding, and is therefore insufficient.
Although the Code makes no provision for a motion to quash a writ of certiorari on the ground of the insufficiency of the application, the motion is a proper method of testing the sufficiency of the pleading. State ex rel. Examining & Trial Board v. Jackson, 58 Mont. 90, 190 P. 295.
It is true that the formal petition does not allege that relatrices are heirs at law of Louis Bernheim, and thus show that they are beneficially interested in setting aside the order of September 5, 1928, but attached thereto and made a part of the application are the judgment of respondent court declaring the interests of these relatrices as heirs at law of Bernheim, and answer of Levitan and Rosenstein, verified by counsel appearing herein for respondents, in which it is alleged that these relatrices are such heirs. We deem the showing thus made in the application sufficient to withstand this technical objection raised by respondents with full knowledge of the interests of relatrices.
2. As to the jurisdiction of this court to grant the writ, there are there indispensable requisites: (1) Excess of jurisdiction in the court making the order complained of; (2) absence of the right of appeal; and (3) lack of any plain, speedy, and adequate remedy other than certiorari. Section 9837, Rev. Codes 1921; State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 P. 396. The absence of any one of these requisites will defeat the writ. State ex rel. Deck v. District Court, 64 Mont. 110, 207 P. 1004.
It is not contended that relatrices have any plain, speedy, and adequate remedy other than certiorari, and we will assume that they have not.
Counsel for respondents contend that relatrices have the right of appeal from the order of which complaint is made.
The writ of certiorari is peculiarly inapplicable to use in aid of appellate jurisdiction, and can never be lawfully issued in cases where err may be reached by appeal. (In re MacKnight, 11 Mont. 126, 27 P. 336, 28 Am. St. Rep. 451), and, if an appeal lies from an order, the fact that the trial court exceeded its authority in making the order will not justify the issuance of this writ. State ex rel. Gates v. District Court, 69 Mont. 322, 221 P. 543.
In civil actions wherein district courts have attempted to relieve a party from default entered, this court has held certiorari will reach the error and correct it, where the court, without authority, strikes the entry of default from the files, no judgment having been entered, as all three of the requisites above mentioned are met (State ex rel. Smotherman v. District Court, 50 Mont. 119, 145 P. 724); and, where the court acts within jurisdiction in granting relief and no judgment has been entered, the order relieving a party from default may be reviewed on writ of supervisory control (State ex rel. Kolbow v. District Court, 38 Mont. 415, 100 P. 207); but, when the order granting such relief is made after judgment entered, the error cannot be reached by writ of certiorari, even though the court has exceeded its jurisdiction, for an appeal lies from the order as a "special order made after final judgment" under subdivision 2 of section 9731, Revised Codes of 1921. State ex rel. Deck v. District Court, above.
Counsel for respondents assert that the decisions announcing this last rule are controlling and compel the quashing of the writ here.
Section 9731, above, is within that part of the Codes dealing with civil actions, from section 9008 to section 9833, while sections 10018 to 10464 thereof deal with probate proceedings; nevertheless section 10366 provides that "the provisions of sections 9008 to 9832 of this...
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