State ex rel. Peel v. District Court
197 P. 741
Mont.
1921
Check Treatment
MR. JUSTICE GALEN

delivered the opinion of the court.

This is an original proceeding wherein a writ of supervisory control or other appropriate writ is sought, directed to the district court of Madison county and Joseph R. Jackson, acting judge thereof.

An order to show cause was issued on the filing of the [1] verified petition herein and the case came on for hearing and argument on motion to quash the order and dismiss the petition. It appears that Horace B. Elling, a resident of Madison county, died on September 22, 1920, leaving estate therein. At the time of his death he was forty-three years old, and died intestate. On October 13, 1920, Alfie Elling, claiming to be his widow, filed her petition for letters of administration of the estate; to this petition Mary B. Elling, mother of the decedent, filed objections and nominated G. G. Wheat as her candidate for letters and on November 13 he filed his petition praying for the issuance to him of letters of administration. Thereafter, on November 30,. Alfie Elling filed with the clerk of the court a praecipe withdrawing her application for letters, and filed in lieu thereof her nomination of the relator, Richard Peel, who at the same time filed his petition praying for the issuance to him of letters of administration based upon her nomination. Both petitions were set for hearing on December 10, 1920. On that date, G. G. Wheat, as such petitioner, filed motions to strike from the files Alfie Elling’s nomination of Richard Peel and Peel’s petition for letters of administration; and on the same day the motions *513were brought on for hearing and evidence taken by the court in support thereof. Later both the motions were by the court granted. The petitions and counter-petitions filed were not then, or at all, otherwise heard, considered or decided; and it is the orders made and entered sustaining these motions to strike of which complaint is made. The contention upon the motions was, in substance, that Alfie Elling, having petitioned for letters (though later withdrawing same), foreclosed her right to nominate, if any she ever had; that Alfie Elling was never entitled to make such nomination; that she had, on June 20, 1902, undergone a marriage ceremony with Horace B. Elling and from that time sustained with him the relation of husband and wife, yet she never was his wife and is not his widow because, at the time of her marriage with him, she was the lawful wife of another. It was conceded that prior to the marriage ceremony she had secured from the district court of Madison county, Montana, what appears to be a decree of divorce from her previous husband, Theodore Johnson, and the contention made in support of the motions to strike ‘ consists of a collateral attack upon the legality of the decree of divorce.

In our opinion, the only question of several presented which we are called upon to decide is whether the district court, sitting in probate on the hearing of preliminary motions, was authorized to entertain and determine a collateral attack made upon the judgment of a court of competent jurisdiction, thus depriving relators of opportunity to participate in the final hearing, .and permit them, should they desire, to make a record upon which the merits of the application might be presented to this court for review on appeal. Solution of this question necessarily involves the remedy applicable.

It is manifest from the recitals contained in the petition before us that Richard Peel is entitled to a hearing upon the merits of his petition for letters, nominated as he was by Alfie Elling, claiming to be the widow of Horace B. Elling, deceased. It appears to us that the court acted arbitrarily *514and without warrant in legal procedure when, by its orders, the relators’ petition and nomination were stricken from the files on motion, without according them a hearing upon the merits. They were clearly entitled to their day in court, which was denied them by the sustaining of the motion's to strike.

Section 7432 of the Revised Codes, provides in part as [2] follows: “Administration of the estate'of all deceased persons dying intestate, must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed his personal estate or some portion thereof, and they are, respectively, entitled therein in the following order: 1. The surviving husband or wife, or some- competent person whom he or she may request to have appointed. 2. The children. 3. The father or mother,” etc. Upon the face of Peel’s petition for letters, and of his nomination as administrator, it is made to appear that Alfie Elling is the surviving wife of the deceased, and, as such, she is prima facie entitled to have letters of administration issued to her, or to some competent person by her designated, in preference to the surviving mother of the deceased. As pointed out under the statute, first in right comes the widow, or some competent person whose appointment she may request, and then the children, if any, and third, the mother.

Alfie Elling, if the widow of Horace B. Elling, deceased, has an absolute right to control in limine the administration of her late husband’s estate; and for such purpose may either administer it herself or nominate some competent person in whom she places trust and confidence. (In re Blackburn’s Estate, 48 Mont. 179, 137 Pac. 381; State ex rel. Cotter v. District Court, 49 Mont. 146, 140 Pac. 732; In re Watson’s Estate, 31 Mont. 438, 78 Pac. 702.)

There is'no merit in the contention made by counsel that [3] Alfie Elling, by petitioning to have letters issued to her as administratrix, thereby foreclosed her right to nominate *515a suitable person in her stead, even though objections were filed against her appointment. In limine she had the right to appointment, as the surviving wife of the deceased, or, as an alternative, to nominate someone in her stead. (In re Dolenty’s Estate, 53 Mont. 33, 161 Pac. 524.) The filing of a petition by her for the issuance of letters did not of itself foreclose her rights to withdraw her petition before hearing and to nominate another person. The praecipe filed with the clerk of the court for the withdrawal of her petition for letters ipso facto worked an abandonment of her petition, and there was but a mere clerical duty devolving upon the clerk to enter its dismissal. The mere filing of the praecipe for withdrawal before hearing was all that was necessary to render it functus officio. No formal order by the court was necessary. It is no different than a praecipe for the issuance of summons or subpoena of witnesses, and was properly addressed to the clerk. Having withdrawn her petition, she was in position, within her statutory rights, to make nomination of another person.

Petition for the issuance of letters by either or any of [4] the parties asserting preference rights may be contested, but in that event, after the giving of the notice provided for, the court, or judge, is required to hear the petitions together. (See. 7441, Rev. Codes.) In this case, instead of hearing the petitions, the court proceeded to hear the motions to strike from the files, took evidence in support thereof, and at the conclusion of such hearing ordered the petition and nomination of the relators stricken from the files. This was an anomalous proceeding, to say the least, and is without - authorized precedent in our procedure. It is as much without purpose or justification as would be the taking of evidence on hearing of a demurrer. The relators are without remedy by appeal (sec. 7098, Rev. Codes; Tuohy’s Estate, 23 Mont. 305, 58 Pac. 722; Raleigh v. District Court, 24 Mont. 306, 81 Am. St. Rep. 431, 61 Pac. 991), nor have they a plain, speedy or adequate remedy in the ordinary course of law. *516But what is the proper remedy to be applied? The relators ask for >the issuance in this proceeding' of a writ of supervisory control or other appropriate writ, and their petition will warrant the issuance of a writ of mandate under the statute (Id., sec. 7214) if that shall be determined the proper remedy.

The writ of supervisory control is in the nature of a [5] summary appeal, and the last refuge whereby relief may be had. It will issue only when there is no other plain, speedy or adequate remedy at law by appeal or other constitutional writ. (State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 63 Pac. 395; In re Weston, 28 Mont. 207, 72 Pac. 512; State ex rel. Carroll v. District Court, 50 Mont. 428, 147 Pac. 612; State ex rel. Mannix v. District Court, 51 Mont. 310, 152 Pac. 753; State ex rel. Hubbert v. District Court, 54 Mont. 472, 171 Pac. 784; State ex rel. Zosel v. District Court, 56 Mont. 578, 185 Pac. 1112; State ex rel. Jerry v. District Court, 57 Mont. 328, 188 Pac. 365.)

In State ex rel. Whiteside v. District Court, 24 Mont., at page 562 (63 Pac. 400), Mr. Chief Justice Brantly laid down the correct rule respecting the issuance of this writ as follows: “As the appellate jurisdiction was granted for the purpose of revision and correction, and the original jurisdiction under these writs was granted to enable us to render such relief as is appropriate under them, so the supervisory power was granted to meet emergencies to which those other powers and instrumentalities are not commensurate. It is independent of both, and was designed to infringe upon the functions of neither. * * * Cases may arise also where some relief could be granted under some one of the other original writs named, but such relief would not be complete and adequate because of some error which could not be corrected by means of the limited functions of the particular writ, while the supervisory power is unlimited in the means at our disposal for its appropriate exercise.”

*517The writ of mandate may be issued by this court to any [6] inferior tribunal to compel the performance of an act which the law specially enjoins as a duty resulting from an office. (Sec. 7214, Rev. Codes.) Ordinarily, mandamus will not lie to correct an error of the district court already made; but in this instance, the court has not acted, but has refused to act—that is, it has refused to hear and act upon the petition of Richard Peel for letters of administration, based upon his nomination made by Alfie Elling, alleging herself to be the widow of the deceased. The determination of the rights of the relators upon the nomination and petition is an act which the law specially enjoins as a duty upon the district court, and therefore the writ of mandamus will lie. (Caledonia Ins. Co. v. Northern Pac. Ry. Co., 32 Mont. 46, 79 Pac. 544.) Accordingly, since the writ of mandamus is adequate to afford relief in the case presented, the writ of supervisory control will not issue.

Paraphrasing the language of Mr. Justice Pigott in the case of Raleigh v. District Court, 24 Mont., at page 311, (81 Am. St. Rep. 431, 61 Pac. 993), as applied to the case before us, Alfie Elling possessed the absolute right to withdraw her petition for letters before hearing and to nominate another person to act as administrator. The district court struck the nomination by her made and the petition for letters based thereon, made by Richard Peel, from the files, for the reason that, as the court believed, Alfie Elling was not the wife of the deceased as alleged; but the law specially enjoined upon the district court the duty to hear the relators’ petition for letters (sec. 7442, Rev. Codes), and to refrain from striking the same from the files. “Refusal to take jurisdiction, or after having acquired jurisdiction, refusal to proceed in its regular exercise, or the erroneous determination of a preliminary question of law, upon which the court refused to examine the merits, will be corrected by mandamus.” “A distinction is recognized between cases where it is sought by mandamus to control the decision of an inferior court upon the merits of a *518cause, and cases where it has refused to go into the merits of the action upon an erroneous construction of some question of law or of practice, preliminary to final hearing.” (High’s Extr. Legal Remedies, sec. 151; R. C. L., secs. 229, 234.)

A peremptory writ of mandamus will issue, commanding the district court to restore to the files the nomination made by Alfie Elling and the petition of Richard Peel for letters of administration based thereon, and to proceed to a hearing on such nomination and petition, in the due exercise of its jurisdiction.

Writ of mandate issued forthwith.

■Me. Chief Justice Brantly and Associate Justices Reynolds, Cooper and Holloway concur.