State v. Superior Court of Chelan County

• Decision Date: 10 October 1913
• Court: Washington Supreme Court
• Parties: STATE ex rel. WOOD v. SUPERIOR COURT OF CHELAN COUNTY et al.

135 P. 494

76 Wash. 27

STATE ex rel. WOOD v. SUPERIOR COURT OF CHELAN COUNTY et al.

Supreme Court of Washington

October 10, 1913

Application by the State, on the relation of Ann Wood individually and also as executrix, for a writ of prohibition to the Superior Court for Chelan County and William A. Grimshaw, Judge thereof. Writ issued.

Kemp & Baker, of Wenatchee, for petitioner.

Reeves Crollard & Reeves, of Wenatchee, for respondents.

MAIN J.

This is an original application to this court for a writ of prohibition to be issued to the superior court for Chelan county and Hon. Wm. A. Grimshaw, Judge. From the petition and affidavit of the petitioner filed herein on July 7, 1913, it appears: That on March 8, 1911, Julia Sackett died testate in Chicago, Cook county, Ill. That the petitioner herein is the sister of the deceased. That on June 30, 1911, the petitioner herein presented and filed in the superior court for Chelan county the last will and testament of the deceased, together with a petition asking that the same be admitted to probate. That under and by virtue of the will the petitioner was the sole devisee and legatee. That the superior court thereupon fixed the 12th day of July, 1911, as the date of the hearing of the petition for probate, and 10 days' notice of such hearing was thereupon given by posting notices thereof in three of the most public places in Chelan county. That on July 12, 1911, a full and complete hearing of the petition for probate was had. That thereupon on that day the clerk of the superior court entered in the minutes of the court that the court ordered that the will be admitted to probate, and that letters be issued to Ann Wood, the petitioner herein and fixing her bond at $6,000. That on the same day the court made and signed its certificate of probate of the will and a formal written order admitting the will to probate, which certificate and order were filed with the clerk on July 13 1911. That thereafter, and on July 13, 1911, the petitioner herein qualified as executrix of the will by filing a good and sufficient bond in the designated sum of $6,000, and by executing the oath required by law. On the same day letters testamentary were issued to her as such executrix. That such executrix thereupon proceeded with the discharge of her duties, and after order duly made, gave notice to creditors to file claims, and published the same according to law; the first publication thereof being made on September 8 1911. That on July 13, 1912, one C. A. Burgess filed with the clerk of the superior court his petition proposing for probate a purported later will of the deceased, which will was dated March 7, 1911, and 'Dr. C. A. Burgess, of Chicago, Ill.,' being designated as executor. That petitioner herein, as executrix,thereupon filed a motion to strike the petition of C. A. Burgess, and asked that his proceeding be dismissed upon the ground that it showed upon its face that it was a petition to contest the validity of the prior will and a proceeding to set aside and revoke the probate of the former will had on July 12, 1911, and as such was barred by the one-year limitation relating to the contest of probate of wills, and therefore that the superior court was without jurisdiction to entertain the proceeding. That on September 18, 1912, this motion was denied. That over the objection and exception of the executrix the superior court permitted C. A. Burgess to file an amended petition. That the executrix thereupon demurred thereto on the ground that the court had no jurisdiction of the subject-matter of the Burgess petition, and also upon the ground that the proceeding had not been commenced within the time limited by law, as appeared from the petition itself, and upon the ground that the petition did not state facts sufficient to constitute a cause of action for grounds of contest because of the date of its filing, which demurrer was on October 2, 1912, overruled. That thereafter the executrix filed an amended answer to the amended petition, and to the affirmative matter set out in the amended answer C. A. Burgess filed a reply. That thereafter the executrix moved for judgment on the pleadings on the ground that the allegations thereof showed conclusively that the contest proceeding was barred because not filed within one year after the probate had on July 12, 1911, which motion was on June 19, 1913, denied. That the administration of the estate under the will probated July 12, 1911, has been practically completed and the estate ready to be closed and distributed according to the terms of the will. That over the objections and exception of the executrix the contest proceeding has been brought to issue, and if the respondents are not prohibited from proceeding with the same, the executrix will have to go to trial thereon, to the great expense and detriment of the estate. That the petitioner herein has no other speedy or adequate remedy, and that the proceedings of the court in the contest proceeding are without and beyond its jurisdiction and void. To the petition and affidavit the respondent on July 11, 1913, filed a demurrer upon the ground that it does not state facts sufficient to entitle the petitioner to the relief demanded.

The questions to be determined are: First, if the superior court failed to acquire jurisdiction, will the writ issue? Second, if the contest was not instituted within the time fixed by statute, can the court acquire jurisdiction? And, third, was the contest instituted in time?

I. It is contended that there is a plain, speedy, and adequate remedy by appeal, and for that reason the writ in any event should not issue. But the law appears to be that where the court is proceeding with a case without first having acquired jurisdiction, it presents a proper case for the invocation of the writ of prohibition. White v. Superior Court, 126 Cal. 245, 58 P. 450; State ex rel. Alladio v Superior Court, 17 Wash. 54, 48 P. 733; State ex rel. Mackintosh v. Superior Court, 45 Wash. 248, 88 P. 207. In the case last...