84 P. 109 | Utah | 1906
after making the foregoing statements of facts, delivered the opinion of the court.
The main or principal ground upon which appellant claims that the court did not have jurisdiction to make the order upon which letters of administration were issued to W. D. Biter, is that the order made by the court September 18, 1900, directing that notice of the hearing on the petition, upon which' said letters were issued, “be given by publishing notice of the time and place thei*eof in at least two issues of the Box Elder News for the period of at least one week prior to the said 28th day of September, 1900, [date fixed by the clerk for the hearing], and mailing a notice of the order according to law,” was not complied with in two particulars: First, the order was not published in the Box Elder News, as directed; nor was any notice mailed or otherwise sent to the heirs, or any of them, of the hearing mentioned in the ■order.
Section 4026, Bevised Statutes 1898, provides that notices ■and orders in probate proceedings
“Shall be sufficient, whether the notice be given by publication or posting, that the notice be given for not less than ten days; but the .court judge or the clerk when authorized, may order or direct the pre*258 cise manner of giving notice ... or mav prescribe a longer notice than ten days.”
The order made in tbe ease under consideration was that tbe “notice of tbe bearing ... be given by publishing notice of time and place thereof in two issues of tbe Box Elder News for a period of at least'one week prior to tbe 28th day of September,” etc. Now tbe record shows that tbe first insertion of tbe notice referred to appeared in tbe Box Elder News, September 20th, and tbe second or last insertion on tbe 27th, of September, 1900; tbe last publication of tbe notice being tbe day prior to the time set for tbe bearing. This was not a compliance nor a substantial compliance with tbe order of tbe court directing tbe “precise manner” tbe notice should be given. Tbe order provided that tbe publication should be for a .period of at least one week prior to tbe date fixed for tbe bearing. Neither was notice of tbe bearing mailed to tbe heirs of tbe deceased as required by section 3818, Revised Statutes 1898, and as directed by tbe order of tbe judge. Tbe purpose of tbe law in requiring notice to be given of the time and place of hearing petitions for letters of administration is to advise those who are interested in tbe proceedings, and give them an opportunity to be present, and, if they so desire, make objections to tbe issuance of letters to tbe party petitioning therefor. (18 Cyc. 120.) That such is tbe intent of tbe statute is apparent from section 4038, which provides that
“Any person shall have a right to be heard by the court at any hearing on any question affecting a probate . . . matter in which he is interested.”
And this court held in tbe case of Wells v. Kelly, 11 Utah 421, 40 Pac. 705, that
“The law is too well settled to require reference to authorities that where jurisdiction depends on' the publication of a notice and the trial of the cause is proceeded with before such publication is complete, the court acts without jurisdiction, and its orders are void.”
In 2 Abbott’s Probate I,aw, section 853, it is said:
*259 “All jurisdiction of person or property depends upon notice. It is the one fundamental and indispensable foundation for ‘due process of law,’ and it may he said, as a rule without exception, that no judicial action whatsoever is valid or binding without some notice, actual or constructive. It is likewise fundamental that the requirements for giving notice must be strictly complied with, and this rule applies with increased force to what are termed ‘special proceedings.’ Proceedings in probate belong to this class.”
Bespondent Eiter contends that inasmncb as the petition upon which letters were issued to him recites that the ages and residence of the heirs of the deceased were unknown to the petitioner, J. J. Guheen, the necessity of mailing notices to the heirs was dispensed with. The petition referred to of J. J. Guheen shows that he was and is a resident of Pocatello, Idaho, and it also' recites that deceased, at the time of his death, was a resident of Blackfoot, Idaho, and that an administrator has been appointed for the estate of the deceased in that state, and it further recites and gives the names of the heirs of the deceased, and it also shows that Bunting, at the time of his death was a resident of Blackfoot, Idaho, and it further appears from the petition that Guheen was. advised of the fact that one Daniel Wolstenholm, who, at the time of the filing of the petition, was the acting guardian of said minor children, held in trust for said estate personal property of the value of $50,000. In other words, it is shown by the petition of Guheen that he was well informed on all matters pertaining to the estate of the deceased, including the names of the heirs thereto. It is a well-established rule of law that the domicile or permanent residence of a minor is the same as that of the parent; and further, when a domicile, or permanent residence, is once established, it is presumed to continue until the contrary is made to appear. (10 Am. & Eng. Ency. Law, pp. 14, 29, 30, and cases cited; 14 Cyc. 858, 859.) Woemer, in his Law of Guardianship (pages 80, 81), says:
“The domicile of an infant is that of his father. . . . This domicile remains until the infant legally acquires another, and since the law conclusively disables, infants from acting for themselves during minority, their domicile cannot be altered by their own acts before reaching majority. Hence, the legal domicile of infant orphans is at the place where the father was domiciled at the time of his death.”
We are of the opinion that the court acted without jurisdiction in making the order directing that letters of administration issue to W. D. Riter. The case is therefore reversed, with directions to the trial court to vacate and set aside the order and revoke the letters of administration issued thereon; the costs of this appeal to be taxed against respondent.
