State v. Superior Court of State of Washington for Spokane County

• Court: Washington Supreme Court
• Writing for the Court: HOLCOMB, J.
• Citation: State v. Superior Court of State of Washington for Spokane County, 275 P. 694, 151 Wash. 289 (Wash. 1929)
• Decision Date: 18 March 1929
• Docket Number: 21731.
• Parties: STATE ex rel. KEMPF v. SUPERIOR COURT OF STATE OF WASHINGTON FOR SPOKANE COUNTY et al.

275 P. 694

151 Wash. 289

STATE ex rel. KEMPF v. SUPERIOR COURT OF STATE OF WASHINGTON FOR SPOKANE COUNTY et al.

No. 21731.

Supreme Court of Washington, En Banc.

March 18, 1929

Prohibition by the state of Washington, on the relation of Fred Kempf as trustee of the estate of Gottfried Kempf, absentee, against the Superior Court of the state of Washington for Spokane county, and Hon. Charles H. Leavy, as judge thereof, to prohibit respondents from proceeding in the matter of a petition for the appointment of an administrator of the estate of Gottfried Kempf, absentee. Writ denied.

McAulay & Freece, of Yakima, and Pettijohn & McCallum, of Davenport for plaintiff.

W. J Parks, of Spokane, for respondents.

HOLCOMB J.

This is an original application for prohibition to prohibit the superior court in and for Spokane county from proceeding in the matter of a petition for the appointment of an administrator of the estate of Gottfried Kempf.

From the petition herein it appears that on April 25, 1922 relator filed a petition in the superior court for Lincoln county praying the appointment of a trustee for the estate of Gottfried Kempf as an absentee from the state of Washington under the provisions of Rem. Comp. Stat. §§ 1715-1 to 1715-10, inclusive, relating to the conservation and administration of estates of absentees. Statutory notice of hearing on this petition was given, and on June 7, 1922, the superior court for Lincoln county made an order appointing Fred Kempf trustee of the estate of Gottfried Kempt as an absentee from the state of Washington. He qualified by filing bond and oath, and on June 28, 1922, letters were issued to him as trustee. He immediately took, and still retains, possession of all of the property of the absentee, and from that time to this has administered the trust under the orders of the court and in compliance with the statute.

In his petition to the superior court for Lincoln county, petitioner alleged that on or about June 23, 1921, Gottfried Kempf left his home in Spokane, Spokane county, Wash., and went to parts unknown; that from that time to the day of the filing of the petition nothong whatever had been learned as to the whereabouts of Gottfried Kempf, nor had he ever been seen by any one so far as petitioner had been able to learn; that efforts had been made by petitioner and other relatives to discover the whereabouts of Gottfried Kempf which had been fruitless; that his last known place of residence was Spokane, Wash. Kempf left real and personal property in Lincoln and Spokane counties, Wash., which required care and attention, an inventory and description of which was made a part of the petition. It was alleged that at the time of his disappearance Kempf left a wife, Josephine D. Kempf, and three children, namely, Fred Kempf, the petitioner, Minnie Michelback, and Marie Nickodemus, who were all of the heirs at law of Gottfried Kempf. It was further alleged that Josephine D. Kempf, wife of Gottfried Kempf, had secured a divorce from Gottfried Kempf and the petitioner and his two sisters were the only heirs at law of Gottfried Kempf; that diligent search had failed to discover any last will. It was then alleged at the time of his disappearance Gottfried Kempf was about 63 years of age, and his personal appearance and habits were briefly described.

On December 20, 1928, Josephine D. Kempf, presented her petition to the superior court for Spokane county in which she alleged that she is the widow of Gottfried Kempf and for more than a year prior to June 30, 1921, she and her husband had been residing together as husband and wife in a home provided by the husband in Spokane, Spokane county, Wash. She then alleged that on or about that day her husband, Gottfried Kempf, left his home in the forenoon, under circumstances related showing the most amicable relations with his wife, to go 'down town,' and mysteriously disappeared without cause or provocation. He never returned to his home, and, diligent search being made to ascertain his whereabouts, it was shortly thereafter communicated to petitioner that Kempf had been seen on a bridge across Spokane river in that county, either on that day or the following day; that no other person had seen him at or about that time or thereafter. It was therefore alleged that the husband, Gottfried Kempf, was dead; that he died in Spokane county, Wash., on about the evening of June 30, 1921, more than seven years prior to the date of the petition.

Upon presentation of the above petition one of the judges of the superior court for Spokane county, sitting in probate, assumed jurisdiction and proceeded to take testimony in support of the petition. The hearing was continued to December 24, 1928, and again to December 31, 1928, when he announced his intention to hear and determine the petition.

Relator, believing that the superior court for Lincoln county had acquired and continued to hold exclusive jurisdiction over the subject-matter by virtue of the prior appointment of a trustee for the absentee and that the superior court for Spokane county had and could acquire no jurisdiction to entertain the petition for administration, or to hear any evidence, or to make any order whatsoever therein, and that there was no speedy or adequate remedy by appeal from such order as might be made by the superior court for Spokane county, sued for this writ.

It is first contended that prohibition lies to prevent the threatened issuance of general letters of administration by a court without jurisdiction and that there is no adequate remedy at law.

Relator contends that our statutes, heretofore cited, relating to estates of absentees, prescribe full and complete procedure for the administration, settlement, and final distribution of all estates of absentees, and excludes from operation upon such estates the general laws governing the administration of estates of deceased persons; that a court of competent jurisdiction having obtained jurisdiction of such matter and having appointed a trustee, being in the midst of the administration and proceeding in the manner provided by statute, cannot be ousted of its jurisdiction and the property taken from possession of its officers by another court of co-ordinate jurisdiction.

In re Guye's Estate, 54 Wash. 264, 103 P. 25, 132 Am St. Rep. 1111, is relied upon by relator to sustain the contention that prohibition lies in such a case as this. In that case it was...