State v. District Court of Second Judicial Dist.
| Decision Date | 06 March 1909 |
| Citation | 100 P. 207,38 Mont. 415 |
| Parties | STATE ex rel. KOLBOW et al. v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT et al. |
| Court | Montana Supreme Court |
Original proceeding in the Supreme Court by the state, on the relation of Johann Kolbow and others, against the district court of the Second judicial district of the state of Montana, Michael Donlan, a judge thereof, and the judges thereof, to set aside an order refusing to vacate a default judgment, and to vacate the judgment. Order directed to be set aside, and judgment vacated.
Frank A. Lenz and C. M. Parr, for relator.
C. F Kelley and Albert J. Galen, for respondents.
About February 14, 1901, a person who called himself, and was generally known by the name of, Charles Colbert, died intestate in Silver Bow county, Mont., possessed of certain real property situated therein. His estate has been in the course of administration nearly all of the time since his death. At first there did not appear to be any heirs to his estate, and the state of Montana claimed the property by escheat. However, persons claiming to be heirs appeared in due time, and on July 21, 1906, one Joseph Cross, claiming to be an heir, filed his petition to have the question of his heirship determined under the provisions of section 7670 et seq., Rev. Codes. Such proceedings were had therein that an order to show cause was issued, service thereof made, proof of service established by an order of the district court, and on September 28, 1906, the default of all persons not appearing was entered. In 1908 certain persons residing in Germany, and hereafter for brevity designated the German heirs, appeared by their attorney in fact, and moved the district court to set aside the default as to them, and permit them to appear in the proceedings to establish heirship. The motion is in the form of a petition, verified by the attorney in fact, and is supported by the affidavits of John Woolbeater and Frank A. Lenz. The district court denied the motion, and thereupon these German heirs applied to this court for relief. In this court their counsel contend that the right of these persons to inherit in this particular instance is conferred by section 25, art. 3, of our state Constitution, and they apparently proceed upon the theory that the district court denied their motion to set aside the default because of the fact that their claims are barred by the last clause of section 4835, Rev. Codes, which reads as follows: "*** But no nonresident foreigner can take by succession, unless he appears and claims such succession within five years after the death of the deceased to whom he claims succession." It is earnestly contended that this portion of the section is unconstitutional. The portion of the section quoted is a statute of limitations, and in this state the bar of the statute of limitations can only be raised by answer. Section 6475, Rev. Codes; Grogan v Valley Trading Co., 30 Mont. 229, 76 P. 211. This being so, and the defense not having been made in that manner, and indeed, upon a motion there is not any opportunity to raise it, the question whether the rights of these German heirs are barred was not before the district court, and could not have been before it. We must assume, then, that in passing upon the motion the fact that the moving parties are nonresident aliens was not considered by the district court, and that the motion must have been treated as if presented by citizens of the United States. The defense of the bar of the statute of limitations is merely a privilege which may be interposed or...
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