156 P. 913 | Idaho | 1916
Lead Opinion
This is an original application in this court for a writ of prohibition to restrain Hon. Carl A. Davis, district judge of the third judicial district, in and for Ada county, from proceeding with the trial of a cause wherein an appeal was taken upon both questions of law and fact in the matter of the estate of Edgar Wilson, deceased, on behalf of Laura Wilson, a minor, by her guardian, Laura D. Wilson.
From the affidavit or petition of the plaintiffs it appears that on January 7, 1915, Hon. Frank Martin, of Boise, presented and filed in the probate court of Ada county a petition to have admitted and probated a certain instrument as the last will and testament of Edgar Wilson, deceased; that thereafter Laura D. Wilson and Edgar Wilson, respectively widow and son of Edgar Wilson, deceased, by and through their attorneys, Messrs. Wood & Driscoll and John F. Nugent, Esq., initiated a contest to the probate of said purported will, and filed the same in the probate court; that under the terms of said will Laura Wilson, a minor and daughter of Edgar Wilson, deceased, was given, devised and bequeathed an estate
On December 3, 1915, Laura Wilson, by her guardian, Laura D. Wilson, duly filed a notice and undertaking on appeal to the district court from the order or judgment above mentioned. After this appeal was filed in the district court, and within the time required by law, Alfred A. Fraser, Esq., and T. L. Martin, Esq., filed in said district court a motion
On March 22, 1916, the judge of the district court in which this appeal from the judgment or order of the probate court was being prosecuted denied respondents’ motion to affirm the judgment or order of the probate court, and made and entered an order to the effect that the judgment or order of the probate court fixing and allowing the attorney’s fee was one in a probate matter from which an appeal would lie to the district court, where the same would be heard de novo. He then set the ease down for trial.
Messrs. Fraser and Martin by their petition seek to procure a writ of prohibition to be issued out of this court to Hon. Carl A. Davis, as judge of the district court of the third judicial district, in and for Ada county, to restrain him from proceeding with the trial de novo in his court of this appeal.
To the petition for the writ of prohibition a demurrer was interposed by counsel for Laura D. Wilson, as guardian of Laura Wilson, which demurrer attacks the petition upon the ground that it clearly appears therefrom that the plaintiffs have a plain, speedy and adequate remedy in the ordinary course of law by appeal to this court from any final order or judgment of the district court, and that no pressing necessity appears to warrant the interposition of the writ of prohibition. Upon this and the further ground that the order or judgment allowing the attorney’s fee entered by the probate court was made in a probate matter from which an appeal lies to the district court under sec. 4836, Bev. Codes, upon ques
Section 4836, supra, which expressly applies to appeals to district courts from probate courts in probate matters, provides: “The appeal may be taken upon questions of law or upon questions of both law and fact. If taken upon questions of law alone, the district court may review any such question which sufficiently appears upon the face of the record or proceeding, without the aid of a bill of exceptions, and no bill of exceptions shall be allowed or granted in the probate court in probate matters. If the appeal be upon questions of both law and fact, the trial in the district court shall be de novo.”
Plaintiffs rely upon sec. 5669, Rev. Codes, as authority for their appointment by the probate court as guardians ad litem for Laura Wilson, and for their right to have the order or judgment of that court fixing the attorney’s fee affirmed. This section, among other things, provides that “At or before the hearing of petitions and contests for the probate of wills; .... the court may, in its discretion, appoint some compétent attorney at law to represent, in all such proceedings, the devisees, legatees, heirs, .... of the decedent, who are minors and have no general guardian in the county, .... The attorney may receive a fee, to be fixed by the court, for his services, which must be paid out of the funds of the estate as necessary expenses of administration, and upon distribution may be charged to the party represented by the attorney. . ... ” They also contend that sec. 21, art. 5, of the constitution confers upon the probate court exclusive original jurisdiction in probate matters affecting the settlement of estates. This section provides: ‘ ‘ The probate courts shall be courts of record, and shall have original jurisdiction in all matters of probate, settlement of estates of deceased persons, and appointment of guardians; .... ” And they further contend that, under sec. 20, art. 5, of the constitution which provides: “The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law,” district courts have no original jurisdiction in probate matters, nor can they
That the probate court is a court of original jurisdiction in all probate matters is admitted, but it does not necessarily follow that district courts are without appellate jurisdiction in probate matters. We think' this question has been decided against the contention of the plaintiffs in the case of the Estate of McVay, 14 Ida. 64, 93 Pac. 31 (on rehearing), where this court, among other things, said: “An examination of secs. 20 and 21, art. 5, of the constitution, discloses at once the fact that the framers of that instrument saw fit to classify ‘matters of probate, settlement of estates of deceased persons and appointment of guardians’ as separate, distinct and aside from ‘eases at law and in equity,’ over which they, gave the district court ‘original jurisdiction.’ It will also be seen from sec. 20 that ‘in all cases, both at law and in equity,’ from which they have clearly distinguished ‘matters of probate, settlement of estates of deceased persons, and appointment of guardians,’ the district court has ‘original jurisdiction,’ am that in all other matters which the legislature might provide for being heard in district courts, the jurisdiction should be solely ‘appellate.’ The words ‘original jurisdiction’ and ‘appellate jurisdiction,’ as employed
That the legislature has conferred appellate jurisdiction upon district courts in probate matters is clear from the discussion of that subject in the McVay case, supra, where the court says: “It must be assumed that the legislature, when it passed the act of March 11, 1903 (Sess. Laws 1903, p. 372), [sec. 4836, Rev. Codes), providing for a trial ‘de novo’ in the district court, on appeal from the probate court, in probate matters, was acting within the purview of the constitution and did not intend to go any further than to provide for the exercise of the ‘appellate jurisdiction’ of the district court. . . . . ‘Appellate jurisdiction,’ as used in sec. 20 of the constitution, is the direct antithesis of the words ‘original jurisdiction ’ in the same section. ’ ’ The court after citing various authorities in support of this proposition, said further: ‘ ‘ Sec. 3 of the act of March 11, 1903, su-pra, provides: ‘The appeal may be taken either upon questions of both law and fact. If taken upon questions of law alone, the district court may review any such question which sufficiently appears upon the face of the record or proceeding, without the aid of a bill of exceptions, but no bill of exceptions shall be allowed or granted in the probate court in probate matters. If the appeal be upon questions of both law and fact, the trial in the district court shall be de novo.’ That is, if the appeal is taken upon questions of law alone, the district court will
In the case at bar the district court, upon appeal, found that there had been no errors of law committed by the probate judge in the, trial of this cause in the probate court, but, as the appeal had been taken upon both questions of law and fact, it ordered that a trial de novo be had upon the same questions of fact as were raised by the pleadings in the probate court and in the same manner as other trials are conducted. The trial judge no doubt based his conclusion upon the decision of this court in the ease of McVay’s Estate, on rehearing, supra, wherein it is expressly held that sec. 4836, Rev. Codes, confers upon the district court appellate jurisdiction to retry only the same issues of law and fact as were heard and determined by the probate court; and in so doing, the district court was acting within the purview of sec. 20, art. 5, of the constitution. The legislature in the enactment of sec. 4836, supra, did not violate the provisions of sec. 21,
In the ease of the Estate of Christensen, 15 Ida. 692, 99 Pac. 829, and Kent v. Dalrymple, 23 Ida. 694, 132 Pac. 301, this court held that an appeal upon questions of both law and fact from any order or judgment entered in a probate matter by the probate court was subject to be tried de novo upon appeal to the district court, which had appellate jurisdiction to retry the same issues of law and fact as were heard and determined in the probate court upon the original pleadings, and whatever judgment was entered in the district court was to be certified back to the probate court for execution in accordance therewith.
We have possibly gone further than was necessary in disposing of this ease on the demurrer, but we have done so in order to settle the question of the right to a trial de novo in the district court on appeal of questions of both law and fact from the probate court in a probate matter. We are satisfied, however, that, upon the authority of the case of Olden v. Paxton, 27 Ida. 297, 150 Pac. 40, and the cases therein cited, an .appeal would lie to this court from any decision rendered in the district court, and that the plaintiffs have a plain, speedy and adequate remedy in the ordinary course of law.
It is contended hy plaintiffs in their brief that the district court has appellate jurisdiction, in the absence of an abuse of discretion, to affirm the order or judgment of the probate court. The rule is well established that when a court has any jurisdiction, either at law or in equity, a writ of prohibition will not lie. But admitting that the court is wholly without jurisdiction, this would not be a proper case for the invocation of the extraordinary writ of prohibition, if we follow the rule announced in the case of Lindley v. Superior Court of Siskiyou County, 141 Cal. 220, 74 Pac. 765, in which case the court held that where a superior court is without jurisdiction, there is a remedy by appeal from any adverse judgment affecting the parties, and the fact that the
Plaintiffs concede that an appeal will lie in the case at bar to the district court for the purpose of affirming the judgment of the probate court, but insist that they have no speedy remedy, and that should a judgment be entered in the district court, the same would be null and void. Since we have reached the conclusion that the case may be tried anew in the district court, and that the district court .has appellate jurisdiction under the constitutional and statutory provisions heretofore cited, this objection raised by plaintiffs is removed.
The demurrer is sustained and the writ denied. Costs are awarded to defendant.
Rehearing
ON PETITION FOR REHEARING.
A petition for rehearing has been filed in this case and a rehearing is asked on two grounds. The first involves the question of whether the district court on a trial of. this case de novo has power to enter a judgment or whether it has only power to review the action of the probate court and either reverse or affirm such action and then remand the case to the probate court. The second involves the question whether the district court has jurisdiction to enter judgment for the amount of attorneys’ fees due petitioners under the law authorizing the appointment of said petitioners as guardians ad litem, to represent said minor. These questions will be answered together.
The district court upon a trial of this case has jurisdiction to determine the amount of the fee that plaintiffs are entitled to and enter judgment for such amount, and such judgment is binding upon the parties to this proceeding unless reversed on appeal.
Sec. 5669, Rev. Codes, provides, among other things, that the attorney so appointed by the court may receive a fee to be fixed by the probate court for his services. This contemplates that sueh fee must be fixed by the court and not by a
With the foregoing additions to the original opinion, the petition for rehearing is denied.
