Terr. of Dakota ex rel. Hall v. Bramble

• Decision Date: 01 January 1880
• Parties: The Territory of Dakota ex rel. Hall v. Bramble and others.
• Court: South Dakota Supreme Court

5 N.W. 945

2 Dak. 189

The Territory of Dakota ex rel. Hall

v.Bramble and others.

Supreme Court of the Territory of Dakota.

Filed _______, 1880.

______, for respondent.

______. for appellants.

KIDDER, J.

This was an action commenced in the district court of Yankton county by the territory of Dakota, at the relation of Emily Hall, plaintiff, claiming to recover of the defendant Bramble the sum of $698.90, the amount of a judgment formerly obtained by the relator in that court against Bramble, as administrator of the estate of J. D. Vandehule, deceased, and the sum of $500, the amount of Bramble's administration bond against Z. L. Van Tassel and Sarah Bordeno, the personal representatives of William Bordeno, surety.

The amended complaint set out in the transcript shows the action to have been at one time prosecuted in the name of Emily Hall, plaintiff, and to have been subsequently amended on or about the time of trial, on plaintiff's motion, by making the territory of Dakota plaintiff at the relation of Emily Hall.

From the transcript it appears that J. D. Vandehule, the intestate, died at Yankton, Dakota, about March 26, 1872, leaving a widow, who still survives him; that the intestate left no personal property of any description, except his wearing apparel, and no real estate, except a dwelling-house and two lots, 44 by 150 feet each, in the city of Yankton, where they were residing at the time of his death, and where the widow has since continued to reside; that prior to the death of Vandehule he became indebted to the relator, Emily Hall, and was so indebted at the time of his death; that after his death Bramble, the defendant, was appointed administrator of his estate and gave a bond, but whether he entered upon the duties of administrator, or did any act as such, the record is silent and unsatisfactory. It is alleged in the complaint that the relator, Emily Hall, recovered a judgment against Bramble, as administrator, in the district court of Yankton county, for the amount claimed in this action; but it does not appear that any order or decree was ever entered in the probate court requiring Bramble to pay the amount of the judgment so obtained, nor does it appear that any steps or proceedings were ever had or taken in the probate court to charge Bramble as administrator and fix his liability, or that any accounting was ever had. So far as the record discloses, the widow of Vandehule has had uninterrupted use and occupation of the real property since the death of the intestate, and still continues to occupy the same.

The jury returned a special verdict, concluding with a general finding upon the other issues in favor of the plaintiff, upon which verdict the court below rendered a judgment against Bramble for the full amount of the judgment theretofore entered against him as administrator, and against the personal representatives of the surety, Bordeno, for the amount of the bond, from which judgment all the defendants appeal to this court. The defendants claim that no greater judgment could be rendered against them, or either of them, than the penalty of the bond; that the bond was the measure of their undertaking; that this was an action against joint defendants, and that no greater recovery could be had against the principal than the surety. And in this it would seem that the position of the defendant is correct. This must be treated as an action on the bond, or a personal action of devastavit against the administrator. They cannot be joined in one action. If it is not an action on the bond, no judgment can be rendered against the surety. The surety is responsible only on his undertaking, and if this is to be considered a personal action against the administrator the relator erred in amending her complaint in making the territory of Dakota the plaintiff upon her relation, for the territory of Dakota has no right of action only as the obligee of the bond. It has no personal action against Bramble for devastavit. But as this error might look only to a modification, and not a reversal of the judgment, we pass to consider the other errors claimed by the appellants.

It is objected that no steps have been taken in the probate court to charge the administrator, Bramble, and fix his personal liability, before bringing this action upon the bond. Can the district court, in the first instance, entertain a suit upon an administrator's bond, charging him with a devastavit of the estate, and, in this indirect manner, encroach upon and usurp the duties and powers of the probate court? By the organic act of the territory the district and probate courts are separately named and enumerated; and, while the act is silent as to the jurisdiction of the probate court, such jurisdiction is as separate and distinct, and as clearly defined by the designation of “probate court,” as any legislative enactment could make it. Superior courts all understand and respect the jurisdiction of probate courts; and probate powers and jurisdiction are very rarely conferred upon courts of general jurisdiction, and never except by express enactment. The territory of Utah undertook by legislative enactment to confer upon the probate courts, under an organic act like ours, a criminal jurisdiction, to hear and determine offences against the territorial laws; but the supreme court of the United States, in a very able opinion, ( Ferris v. Higley, 375,) denied such right, holding that the legislature of a territory has no right or power to confer any additional jurisdiction upon the probate court, designated as such, in the organic act. Says the learned court, in delivering its opinion: “It is sufficient to say to the present house, it has been the almost invariable rule among the people, who make the common laws the basis of their judicial system, to have a distinct tribunal for the establishment of wills and the administration of the estates of men dying with or without wills;” indicating and determining by this opinion that our probate court is a “distinct tribunal” for probate business and probate jurisdiction only. If, therefore, the legislature cannot confer any additional jurisdiction upon the probate court by express enactment, can it be claimed that the jurisdiction given to the probate court by the organic act can be taken away from it, or conferred upon another court, in the absence of any statute to that effect? The organic act confers upon the district court chancery and common law jurisdiction, “but not probate powers,” while the several acts of the territorial legislature have enumerated the powers and jurisdiction of the probate court, and in no case have they attempted to extend such jurisdiction to the district courts, except by appeal.

Bramble cannot be liable for a devastavit of the estate to an amount greater than the estate has lost or has been wasted, and proceeding upon this well-settled principle the lower court has attempted, upon a determination of the issues by the special finding of the jury, to ascertain such liability, such as finding the value of the rents and profits of the estate, etc.; but, without stopping to inquire into the sufficiency of the facts as found to support the judgment, we pause in limine to consider this more serious objection presented, whether the jury in this case could make such findings or not.

At common law, the rule seems to be well settled that the devastavit must first be established in a separate suit against the principal. The surety could not be heard to plead the good administration of the principal, and a recovery against the principal was conclusive on the surety. We are aware that this rule has been changed in some states by statute, and the obligee of the undertaking is permitted to bring suit in the first instance upon the bond; but our attention has not been called to any statute of our territory changing this well-settled rule of the common law, and in the absence of such statute we cannot see any right of recovery against the administrator until his liability has been fixed by some proceeding in the probate court.

It was, however, urged upon the hearing in this court that Bramble had been cited by the probate court to account, and that he answered, in substance, that there was no property to administer; that Vandehule left no property but the two lots and the dwelling-house, (the homestead,) which was claimed and occupied by the widow as such. The record fails to disclose such facts, and, if so, they would argue in favor of the administrator, and not against him. We could thereby be led to the conclusion that the probate court, upon such an answer to his relation, agreed with the administrator that there was not any estate upon which he could adminter, and, therefore, refused to require him to sell the homestead, or pay the claim of the relator. Her remedy was ample and adequate in this regard; she could have the probate court enter its decision of record, and, if aggrieved thereby, she could have appealed to the district court and have had its correctness passed upon here; but, failing to obtain any action of the probate court in the premises, we do not see how she can ask to be heard in the district court, in the first instance, in a suit upon the bond as to matters peculiarly cognizable in the probate court.

In speaking of the jurisdiction of the probate court, under a statute similar to ours, the Mississippi supreme court, in Smith v. Everett, 50 Miss. 575, says: “The ordinary bond for faithful administration is not intended to transfer the jurisdiction of questions connected with such administration from the appropriate and exclusive sphere of the court, exercising probate jurisdiction, to that of common-law courts, but these bonds are designed to secure the enforcement of the decrees of the court having jurisdiction in matters testamentary and of administration. *** But after the amount due the party in interest has been ascertained, and the court...