10 Mont. 401 | Mont. | 1891
Much has been brought into this case in the argument that is not pertinent to the hearing. The application is for a writ of certiorari. The general principles of law applicable to the invocation of this writ are the same throughout all the courts. But any doubts as to the province of the writ in this court, and any minor differences in the views of courts upon the writ generally, are fully set at rest by the explicit provisions of the statute of this State. Under that statute we have only to inquire whether the application is properly before us, and if so, whether the district judge exceeded his jurisdiction.
Many interesting points are discussed by counsel, to which we will not advert, but will only offer a construction of section 95, which seems to us as clear as it is conclusive. The public administrator, when acting solely as such, is perhaps a public officer. His powers and duties are defined, and the estates of which he shall take charge are described. (Comp. Stats. § 821, p. 863; § 333, p. 357.) When there is a delay in appointing an administrator, the district judge, for the temporary protection of the estate, may do one of two things (§ 95): (1) He may direct the public administrator to take charge of the estate, or (2) if he does not so direct he must appoint a special administrator. There seems to be no ambiguity in this provision. A discretion is given to the district judge to adopt one of two courses.
In the' case at bar the judge exercised this discretion, and exercised it by not directing the public administrator to take charge of the estate. The judge took the other alternative of the statute, and proceeded to the appointment of a special administrator. He thereby did something wholly inconsistent with directing the public administrator to take charge of the estate, and thereby as well passed upon and decided the question of directing the public administrator to take charge, and decides it adversely to such taking charge by the public administrator. This was an act of judicial discretion, of which no abuse is shown, and of which the public administrator cannot complain.
Having passed and settled this matter, and proceeding to the other alternative allowed the judge, under section 95, viz., the
Our interpretation of these laws is, that when there is delay in the appointment of an administrator, the judge may direct the public administrator to take charge of the estate. If he does not do so, which he need not, then the public administrator is disposed of in the premises, and the judge must go on to appoint a special administrator from the classes of persons named in section 55 other than the public administrator. Now the public administrator invokes the writ of certiorari on the ground that the district judge exceeded his jurisdiction.
Under our construction of the statutes, we are of the opinion that the district judge, as far as the relator is concerned in the proceedings, did not exceed his jurisdiction; and the writ is therefore dismissed.