90 P. 601 | Ariz. | 1907
— Mrs. Otero brought suit against Joseph J. Otero and W. K. James to quiet title to real estate. Prom a judgment in favor of defendants, she has appealed.
The assignments of error are directed at a ruling of the. court excluding from evidence an order of the probate court of Maricopa county offered in evidence by the plaintiff. • The instrument so rejected has not been brought before us by the record. This point is raised by counsel for the appellees as an objection to our consideration of the assignments of error. Counsel for the appellant and counsel for the appellees have each failed to call our attention to the fact that the trial court, by its findings of fact, set forth its action with reference to this offer of evidence in sufficient detail to bring the ruling properly before us. The court’s findings in this behalf are as follows: “That on September 20, 1901. the said Jesus L. Otero, jAe husband of the plaintiff, died intestate, leaving him surviving eight children, all of whom are still living. That thereafter, on December 6, 1901, one Arthur M. Otero was by the probate court of Maricopa county duly appointed the administrator of the estate of said Jesus L. Otero. . . . That thereafter, on July 8, 1908, the probate court entered an order discharging said administrator and releasing the sureties on his bond as such administrator. That on April 18, 1904, a petition was filed in the probate court by this plaintiff, in which, among other things, the said plaintiff set forth that the property described in the complaint herein, being the property of said estate, together with other property, was omitted from the inventory of the property filed on said twentieth day of May, 1902, by the said administrator, Arthur M. Otero, as the property of said estate. . . . That on the trial hereof, the plaintiff offered evidence to prove that the said probate court entertained said petition of the plaintiff herein which was filed in said court on said eighteenth day of April, 1904, at the request of the said Joseph J. Otero and Leopold P. Otero, and, with their consent, made an order setting aside the order discharging said Arthur M. Otero as administrator of said estate, and directed him to proceed and carry out the administration of said estate and to administer upon the property mentioned in said petition, including the property set forth in the complaint herein. Further, that said administrator did administer upon said property, and that part of the property mentioned in said petition was distributed to all of the heirs,
Reference to the reporter’s transcript, which is properly set forth in the abstract of the record and was allowed by the trial judge as correctly embodying his rulings, discloses that the objection to the introduction of these proceedings of the probate court, which was considered and sustained by the trial court, was that such proceedings were without the jurisdiction of the probate court. It is disclosed that the administrator of the Otero estate was discharged on July 8, 1903; that the petition upon which the order setting aside this order of discharge and directing further administration, and the orders of distribution and sale were based, was filed at a term of the probate court subsequent to that at which the order was made discharging the administrator. It was contended by the defendants (appellees) in the trial court, and is contended here, that after the lapse of the term at which the order was made discharging the administrator the probate court lost jurisdiction of the estate, and could not again acquire it except by the initiation of new proceedings; that the court could not set aside the order discharging the administrator by reason of such loss of jurisdiction. We concur with the appellees that the order discharging the administrator was a final order, and that the probate court did not have jurisdiction to set aside that order after the lapse of the term in which the order was entered. Bronson v. Schulten, 104 U. S. 415, 26 L. Ed. 797; National Metal Co. v. Greene Consolidated Copper Co., 9 Ariz. 192, 80 Pac. 397; Smith v. Hanger, 150 Mo. 437, 51 S. W. 1052.
But it is also the law that “the records, orders, judgments and decrees of said probate courts shall have accorded to them like force and effect and legal presumptions as the record, orders, judgments and decrees of the district court.” Para
The judgment of the district court is reversed, and the ease is remanded for a new trial.
SLOAN and CAMPBELL, JJ., concur. DOAN, J., dissents.