State v. District Court of First Judicial District
| Citation | 128 P. 913,46 Mont. 492 |
| Parties | STATE EX REL. GOODMAN v. DISTRICT COURT OF FIRST JUDICIAL DISTRICT ET AL. |
| Decision Date | 20 December 1912 |
| Court | United States State Supreme Court of Montana |
Mandamus by the State, on the relation of Bessie Goodman, against the District Court of the First Judicial District in and for the County of Lewis and Clark, and J. Miller Smith, a Judge thereof. Writ issued.
A. H McConnell and Galen & Mettler, all of Helena, for respondents.
Mary Goodman died intestate in Lewis and Clark county on November 15, 1911, leaving an estate consisting of real and personal property. Henry Sheehan was appointed the administrator by Hon. J. Miller Smith, the judge presiding in department 2 of the district court of Lewis and Clark county. The relatrix herein is entitled to a distributive share in the estate, as assignee of Jacob Goodman, a son of the deceased; she being recognized as such assignee both by the court and the other persons entitled to distributive shares therein. On June 20, 1912, the court made and entered its decree settling the final accounts of the administrator and directing distribution of the residue of the estate, which, except certain household furniture consists of separate pieces of real estate situated in the city of Helena. The relatrix was declared entitled to an undivided one-ninth interest. In the meantime, on May 31st she had filed her petition alleging that the property constituting the estate could not be fairly divided among those entitled to it, without partition by one or more commissioners appointed by the court for that purpose, and asking that such commissioners be appointed. On June 20th, after the decree of distribution had been made and with the consent of all the distributees, the court appointed John N. Glass commissioner to make the partition. The decree of distribution deferred final discharge of the administrator until partition should be made. The order of appointment required the commissioner, in case he ascertained that partition by allotment could not be effected without prejudice to the interests of the distributees, to so report to the court and also to report the true value of the property. On June 27th the commissioner reported in writing that partition could not be made by allotment without prejudice to the interests of the distributees. He stated the value of the property to be $3,227, recommended that it be sold and that the proceeds be distributed, and prayed that an order be made authorizing him to make the sale. On the same day the court made an order directing the commissioner to sell at public or private sale and report his action. The commissioner not having been able to effect a sale up to that time, the court on December ______ ordered him to file his final report; it being the purpose, as the judge then stated, to discharge him from his office and presumably to discharge the administrator also, leaving the title of the distributees to be held in common under the decree of distribution. On December 2d the relatrix filed a motion asking for an order requiring the administrator to have recorded a certified copy of the decree of final distribution, and also that he be required to collect the rents accruing from the real estate. She also, through her attorney, requested the court to retain the commissioner in office until he could effect a sale for which he was then negotiating. The judge informed counsel that he would not do this. Immediately thereafter the relatrix filed an affidavit, through her attorney, alleging that she believed, and had reason to believe, that she could not have a fair and impartial trial of the proceedings pending for decision before Judge Smith by reason of his bias and prejudice. On December 9th she filed a formal motion for a transfer of the administration and all further proceedings to department 1 of the court to be disposed of by Hon. J. M. Clements, the judge presiding therein. Judge Smith declined to consider the affidavit and signified his intention to retain jurisdiction and make final disposition of the administration as though the affidavit had not been filed. Thereupon this application was made to this court for mandamus to compel him to recognize his disqualification and order the transfer to be made.
In pursuing the course he did, Judge Smith evidently proceeded upon the assumption that the decree of distribution was a final disposition of the...
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