Welsh v. Krause

• Decision Date: 03 February 1917
• Docket Number: 3960. [*]
• Citation: 161 N.W. 189,38 S.D. 264
• Parties: WELSH et al. v. KRAUSE, County Court Judge.
• Court: South Dakota Supreme Court

161 N.W. 189

38 S.D. 264

WELSH et al. v. KRAUSE, County Court Judge.

No. 3960. ^[*]

Supreme Court of South Dakota

February 3, 1917

Appeal from Circuit Court, Brookings County; Carl G. Sherwood Judge.

Prohibition by Sarah E. Welsh and others against W. A. Krause, Judge of County Court of Moody County. From an adverse judgment and order, defendant appeals. Reversed.

Rice & Rice, of Flandreau, for appellant.

Hall Alexander & Purdy, of Brookings, for respondents.

POLLEY J.

This is an appeal from a peremptory writ of prohibition, issued by the circuit court of Brookings county, directed to the county judge of Moody county, enjoining the said county judge from exercising jurisdiction in the matter of the estate of a deceased person. The decedent, Patrick Fleming, died in Moody county on or about the 25th day of May, 1915. He left surviving him, as heirs at law, two daughters and the children of a deceased daughter, who are the plaintiffs in this action, and one son, Francis Fleming. Prior to his death the said Patrick Fleming was seised in fee of several tracts of real property situated in Moody and Brookings counties and on the 28th day of July, 1915, the plaintiffs in this action commenced an action in the circuit court of Brookings county for the purpose of quieting title in themselves to an undivided three-fourths interest in and to said real property. The said action was commenced under the provisions of chapter 81, Laws 1905, and the said Francis Fleming, the executors, administrators, heirs at law, devisees, legatees and creditors of Patrick Fleming, and all persons unknown who may have, or who may claim to have, any estate or interest in or lien or incumbrance upon the said real property of Patrick Fleming, deceased, are made defendants.

On the 20th day of August, 1915, the defendant Francis Fleming appeared and answered the complaint of the plaintiffs in said action. In his answer said defendant claimed to be the owner in fee of the whole of said real property, and based his claim of ownership upon an alleged grant by deed from the said Patrick Fleming, dated April 17, 1912, and also set up an alleged last will and testament of the said Patrick Fleming, dated the 7th day of May, 1910, and in which he is named as residuary legatee. Defendant also by his answer called upon the said plaintiffs to set forth the source of their claim to said real property, and prayed that title thereto be quieted in him. To this answer plaintiffs interposed a reply, in which they denied the making of the said will or the said conveyance of the said real property, and alleged that said Patrick Fleming died intestate and while seised in fee of the whole of said real property. On the following day, after serving his answer, said defendant Francis Fleming filed the said last will and testament, together with a petition for the probate thereof, in the county court of Moody county. On the day set for hearing the said petition the plaintiffs herein appeared in the said county court and objected to the further exercise of jurisdiction over the said estate by the said county court, and moved the dismissal of the petition for probate of said last will and testament of Patrick Fleming upon the following ground:

"That the circuit court within and for the county of Brookings, *** being a court of general jurisdiction, and having a concurrent jurisdiction in probate matters with the county courts of this state, first acquired jurisdiction to determine who are the heirs at law, devisees, and legatees of the said Patrick Fleming, deceased, and to make an adjudication upon the right of such heirs, devisees, and legatees and of all creditors of said decedent, and to make final settlement of the estate of said decedent in an action in said circuit court (wherein the plaintiffs are the same as the plaintiffs in this action), and Francis Fleming and the executors, administrators, heirs at law, devisees, legatees, and creditors of Patrick Fleming, deceased, and all persons unknown who may have, or who claim to have, any estate or interest in or lien or incumbrance upon the real property hereinafter described, are defendants, which action was brought under and by virtue of the provisions of chapter 81 of the Session Laws of 1905 of the state of South Dakota, and involved all of the real estate and all property of the said Patrick Fleming, deceased."

This motion was denied, and said county court proceeded with the administration of said estate. The plaintiffs then applied to the circuit court of Brookings county for a writ of prohibition, and, upon the foregoing facts, said circuit court issued a peremptory writ of prohibition enjoining the judge of said county court from the exercise of further jurisdiction over the said estate.

Plaintiffs base their claim in the premises on the provisions of chapter 81, Laws 1905, and a disposition of the case requires a determination of the meaning of certain portions of that chapter and the extent, if at all, to which it confers jurisdiction of the estates of deceased persons upon the circuit courts of this state. In addition to authorizing the commencement of an action by any person having or claiming to have an interest in real property, whether in or out of possession thereof, against any and all persons, known or unknown, claiming adversely to such persons and providing the manner of acquiring jurisdiction of such adverse claimants, said chapter contains the following provisions:

"Sec. 4. The court shall have jurisdiction in such action to determine who are the heirs at law, devisees and legatees of any deceased person who had in his lifetime any interest in or lien or incumbrance on the premises involved between themselves, as well as with respect to the rights of the plaintiff, and to make an adjudication upon the rights of such heirs, devisees and legatees and of all creditors of such deceased persons in and to such premises, which shall be valid and binding upon them and upon all the world, and if such heirs at law, devisees and legatees of such deceased person and the creditors of such deceased person and the unknown defendants in said action, or any of them, shall fail to appear in such action and set forth and assert their interest in or claim to the premises involved, they shall be by the judgment and decree of the court forever barred and enjoined from thereafter claiming or asserting any title or interest in or lien or incumbrance upon or claim to the premises involved in the action. From the time of the publication of the summons, as hereinafter directed, the circuit court shall have jurisdiction of the estate of any such deceased person, to make final settlement thereof, so far as may be necessary to a complete determination of the title to the

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