18 S.W.2d 1020 | Ark. | 1929
This is an original petition for mandamus by Margaret Agnes Edmondson against Hon. J. V. Bourland, as judge of the Sebastian Chancery Court for the Fort Smith District, to compel him, as such chancellor, to allow her to file an answer and cross-complaint in an action pending in said court, and to file a motion to set aside an appointment of a guardian ad litem for her as an insane person.
The record shows that Francis A. Vaughan, as executrix and trustee of the will of Thomas W. Edmondson, deceased, brought suit in said chancery court to construe said will and to terminate the trust. It was ordered by the chancery court that Margaret Agnes Edmondson, widow of said decedent, be made a party to the suit, to the end that her interest, if any, in said estate be adjudicated. It was claimed that she had elected to take dower in said estate, and had filed her renunciation under the will when it was admitted to probate. She had been judicially declared insane, and a guardian had been appointed for her by the probate court of Sebastian County for the Fort Smith District. A guardian ad litem was appointed for her in the suit to construe the will. Margaret Agnes Edmondson, who is now a resident of St. Louis, Mo., through attorneys of her own selection, filed a motion in said chancery court to set aside the *977 appointment of a guardian ad litem for her as all insane person. The court refused to let her attorneys file said motion, and also struck from the files of the court an answer and cross-complaint of said Margaret Agnes Edmondson, which had been filed a few days before by her said attorneys, on the ground that her defense to the action could only be made by the guardian ad litem appointed by the, court. The court refused to let the attorneys selected by said petitioner file an answer or cross-complaint for her. Said petitioner alleges that the order adjudging her to be an insane person is not a valid order; that she is not how all insane person.
Under these circumstances mandamus is a proper remedy. While it is well settled that a writ of mandamus will not be allowed to control the judicial discretion of a trial court, or to require a judicial tribunal to act in a particular way, there are limitations to the rule, and it may sometimes be employed to prevent irreparable injury, as where the remedy by appeal is inadequate. 38 C.J., pp. 608-609.
It is plain that the propriety of the writ must be determined for each case upon its own peculiar merits. In the application of the principle in Ex parte Watters,
In re Conoway,
So here the petitioner alleges that the order of the probate court adjudging her to be an insane person was not a valid order, and that she is not now insane. She is claiming an interest in the property embraced in the will, and would not be able to appeal from an adverse judgment if she is not allowed to appear by counsel of her own selection.
The court should allow her to appear by counsel of her own selection, and can still protect her interest by appropriate orders if it shall deem her to be insane. The proceeding is not to control the chancery court in its exercise of a judicial discretion, nor to compel it to rule in a particular way in the trial of the cause, but to prevent an abuse of the discretion of the court. Under the facts stated, the action of the court, so far as the rights of petitioner are concerned, amounted to a refusal to proceed with the case, through an erroneous determination of a preliminary question of practice or procedure. In other words, the action of the court amounted to such an abuse of discretion as that it may be said to have been arbitrary. State v. District Court, etc.,
We think mandamus was the proper remedy, and direct a writ to issue commanding said chancery court to proceed in accordance with the views herein stated. It is so ordered.