State v. District Court of Fourteenth Judicial Dist. in and for Broadwater County
| Decision Date | 21 October 1915 |
| Docket Number | 3701. |
| Citation | 152 P. 753,51 Mont. 310 |
| Parties | STATE EX REL. MANNIX v. DISTRICT COURT OF FOURTEENTH JUDICIAL DIST. IN AND FOR BROADWATER COUNTY ET AL. |
| Court | Montana Supreme Court |
Supervisory control by the State, on the relation of Con Mannix, against the District Court of the Fourteenth Judicial District in and for the County of Broadwater and others. Writ granted.
Walsh Nolan & Scallon, of Helena, for relator.
H. G McIntire, of Helena, for respondents.
Supervisory control. W. B. Dolenty died testate in Broadwater county in 1910, and on November 22d of that year the district court of the Fourteenth district, sitting at Townsend, in Broadwater county, having jurisdiction of the estate, admitted the will to probate, and in accordance with the wish of the decedent as expressed therein, appointed Isabel Dolenty, the surviving wife, executrix. As required by the order of appointment, she gave bond in the sum of $50,000. Since that time the estate has been in process of administration. Though, as shown by the report of the appraisers, the value of the estate was $109,- 345.26, the testator was greatly in debt, to such an extent in fact, as is apparent from the several reports of the executrix made from time to time exhibiting the claims of creditors and the expenses of administration already incurred and estimated as hereafter necessary, that the assets of the estate are not sufficient to pay the unsecured creditors in full. The estate is therefore insolvent. On October 14, 1913, the executrix presented her petition to the court, exhibiting the condition of the estate, and asking for an order authorizing her to sell all of the property, real and personal, belonging to the estate, in such manner as the court might direct, to pay such of the claims as still remain outstanding, some of the secured claims having in the meantime been paid. Such proceedings were had that on December 1st the court made the order prayed for. It authorized the executrix to sell for cash all the property at public or private sale as she might deem best for the interest of the estate. It directed that the sale be made not later than April 1, 1914, and required the executrix to give a supplemental bond in the sum of $25,000. It further directed that, if the sale could not be made prior to April 1, 1914, the executrix should sell the property at public auction not later than June 1st. This order was made by Hon. W. A. Clark, one of the judges of the Fifth district, who was at the time presiding and holding court in Broadwater county in place of Hon. John A. Matthews, the judge elected for the Fourteenth district, who was then absent, but not disqualified. Hon. J. M. Clements is, and at the times referred to hereafter was, one of the judges of the First district, which is composed of the county of Lewis and Clark. Hon. Geo. W. Pierson is one of the judges of the Thirteenth district, which is composed of the counties of Yellowstone, Big Horn, and Carbon. Prior to April 16, 1914, Judge Clements had been requested by Judge Matthews to hold court in Broadwater county for the disposition of matters not connected in any way with the administration of the Dolenty estate. Pursuant to the request so made, Judge Clements was holding court at Townsend for Judge Matthews on April 16th. Upon application of the executrix he made an order modifying the order of sale made by Judge Clark on December 1, 1913, by extending the time within which she might make the sale until October 1, 1914. Thereafter, on September 25th, upon application by the executrix, Judge Clements made a second order extending the time within which the sale could be made to November 2d. Under the order of Judge Clark as modified by these orders of Judge Clements, and on October 24th, the executrix sold at public auction certain real property belonging to the estate. She filed her report with the clerk at Townsend, with her objections to the confirmation of the sale. Judge Clements by order fixed the hearing thereon for November 21, 1914, and directed notice to be published that the hearing would take place at Helena. At the hearing he refused to confirm the sale, and directed the executrix to accept an offer then made in writing by Laura T. Galen to pay for the property a price more than 10 per cent. in excess of the bid received at the sale. He further directed her to make a conveyance to Laura T. Galen. This was thereafter done. At this time the executrix applied to Judge Clements for an order reducing the amount of the bond which she had given at the time of her appointment. The order was granted reducing the amount to $10,000. On December 23, 1914, the executrix applied for an order authorizing her to transfer to one E. A. Kimpton certain real property belonging to the estate, for the consideration of $5,000. Kimpton was a creditor of the estate to the amount of $4,667.75. He was desirous of purchasing the property, and had stipulated with the executrix that, when it had been ascertained what pro rata of his claim he would receive upon final distribution, he would credit the amount of it upon the purchase price and pay the balance in cash. An order was made by Judge Clements authorizing the transfer. On January 2, 1915, upon the petition of the executrix, Judge Clements made an order reducing the amount of her supplemental bond to $10,000. All these orders made by Judge Clements, except the one dated April 16, 1914, though ostensibly made at Townsend upon applications submitted there, were in fact made at Judge Clements' chambers at Helena, the various applications for them being submitted to him at Helena, he having never returned to Townsend after April 16, 1914. So far as appears, the orders dated subsequent to that made on the report of sale were made without notice and without appearance by any creditor. On February 19, 1915, on petition of Con Mannix on his own behalf as a creditor of the estate, and on behalf of the other creditors, the court at Townsend, Judge Matthews presiding, ordered the executrix to file her fourth annual report on or before March 15th. This was done. The report contained a detailed statement of her receipts and disbursements during the preceding year, of sales of property, including the two made to Laura T. Galen and E. A. Kimpton, and a description of the property remaining unsold. On March 22d Mannix, for himself and other creditors, filed a motion asking that all the orders made by Judge Clements, except the one dated April 16, 1914, be annulled and set aside on the ground that Judge Clements was without jurisdiction to make them. Mannix also objected in writing to many of the items of the account, among others to the Galen and Kimpton sales, on the ground alleged in the motion, insisting
that the orders be set aside, and the executrix charged with the property as if it had not been sold. For some reason not disclosed to this court, Judge Matthews, though not disqualified to hear the motion and objections, called in Judge Pierson to hear and dispose of them. Though it was admitted then, as now, that the orders were made as alleged, Judge Pierson denied the motion, holding that, as Judge Clements had been present in Townsend on April 16, 1914, when he made the order of that date, he acquired jurisdiction by virtue of his action at that time to make the subsequent orders at his chambers in Helena. Judge Pierson's order was made on June 4, 1915. Upon a sworn application in the form of a petition by Con Mannix, the relator, representing himself and the other creditors of the estate, setting forth the facts recited above, this court issued an order to show cause why the court should not be directed to set aside the order of Judge Pierson overruling relator's motion and vacate the orders complained of. On the day fixed for the hearing counsel representing the court and Judge Pierson, moved that the order to show cause be quashed, and that the proceeding be dismissed on the ground that the facts stated do not warrant any relief. The motion was thereupon submitted for final decision.
Whether it was within the power of Judge Clements to make the orders complained of depends upon what power he acquired over the administration proceeding as a whole by the making of the order of April 16, 1914. That he had power to make this order cannot be questioned. He was then sitting at Townsend, and properly exercising the functions of Judge Matthews. The Constitution confers upon a district judge of one district the power to hold court in any district in the state, in place of the resident judge, when requested by the resident judge, and makes it his duty to do so when required by law. Const. art. 8, § 12. Section 6270 of the Revised Codes provides:
"A judge of the district court of any judicial district may hold the district court in any county of another district than his own at the request of the judge thereof, and, upon the request of the Governor, it is his duty to do so; and in either case the judge holding the court has the same power either in court or chambers as a judge thereof."
Local jurisdiction of estates is in the county in which the decedent resided at the time of his death, wherever it may have occurred. Rev. Codes, § 7383. When the local judge is for any reason disqualified to sit in probate proceedings pending or about to be instituted in the court over which he presides, it is his duty to call in the judge from the nearest adjoining district to preside in such proceeding. It is then incumbent upon the requested judge, if not himself disqualified, to obey the request and conduct the proceeding to a conclusion. Section 7484. As an alternative, under the same circumstances, an order must be made transferring the proceeding to an adjoining county in another...
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