227 P. 378 | Wyo. | 1924
This is an original action in this court for a writ of prohibition against the District Court of Fremont County, Wyoming, and the judge thereof. The petition alleges, in substance, the following facts:
That on March 7th, 1924, there was filed in the office of the clerk of the district court of Fremont County, Wyoming, the following order, to-wit:
‘ ‘ State of Wyoming ) In the District Court )ss. Eighth Judicial District County of Fremont ) No. 908.
In the matter of the Estate of ) ) In Probate Jacob A. Delf elder, Deceased. )
To ORDER
Lon J. Poston, John W. Hay, American National Bank of Cheyenne, Wyoming and The Rock Springs National Bank of Rock Springs, Wyoming:
Complaint in writing, and verified by the oath of the Executrix of the Estate of Jacob A. Delf elder, Deceased, having been made to me as Judge of the above entitled Court that you and each of you are suspected to have concealed, embezzled, conveyed away and disposed of money, goods and chattels of the decedent and have in your possession and control certain conveyances, contracts and other writings which contain evidence of, and tend to disclose the right, title, interest and claim of the decedent to real and personal property, and that said property was so concealed, embezzled conveyed away and dis*420 posed of by you after tbe death of the said Jacob A. Delfelder before granting of letters testamentary or of administration of his estate.
YOU ARE THEREFORE HEREBY CITED AND ORDERED to be and appear before R. R. Rose, Judge of the above entitled Court at the Court House at Lander, Fremont County, State of Wyoming at the hour of 9.30 o’clock A. D. on the 7th day of April 1924, then and there to answer, under oath, upon the matters of said complaint, and you and each of you will bring with you-all deeds, contracts, telegrams, letters and other writings which in any way refer to or pertain to the property of the said decedent, whether made, written or executed either prior or subsequent to the death of the said Jacob A. Delfelder. In this you will fail not under the penalties provided in Chapter 437' Compiled Statutes of the State of Wyoming, 1920.
IT IS FURTHER ORDERED that the Clerk of the above entitled Court forthwith deliver a certified copy of the foregoing citation to the Sheriff of Fremont County for service upon Lon J. Poston, together with two certified copies to be by said Sheriff delivered to the Sheriff of Sweetwater County for service upon John W. Hay and the Rock Springs National Bank of Rock Springs, Wyoming, and one certified copy to be delivered'to the Sheriff of Laramie County for service upon the American National Bank of Cheyenne, Wyoming, and that due return be made by said Sheriffs on or before the 26th day of March, 1924.
Dp ted this 6th day of March, A. D. 1924.
BY THE COURT:
R. R. Rose
Judge.”
That a copy of said order, duly certified by said clerk was served upon each of the petitioners prior to March 15th, 1924; that immediately upon the service thereof
The order above mentioned was made pursuant to the provisions of section 6831 W. C. S. 1920. That section provides among other things that if any executor, administrator or other person interested in the estate of a de
Upon the filing of the foregoing petition in this court, an alternative writ of prohibition was issued, citing the defendants to appear and show cause why the writ should not be made permanent. The defendants appeared and filed a demurrer to the petition upon the ground that it fails to state facts sufficient to constitute a .cause of action. The demurrer has been duly argued, and is now before us for disposition.
1. The petition in this ease fails to show that relators appeared in the case below and objected to the jurisdiction of the court. "We held in the case of State ex rel First Nat. Bank v. The District Court, 12 Wyo. 547, 76 Pac. 680, that a writ of prohibition will not be granted until the objection of want of jurisdiction has been presented and overruled in the court below against which the writ is sought, for it is invariably presumed that the court will give the parties the relief to which they show themselves entitled. This was stated to be the general rule, and recent eases confirm this statement. Jennings v. Bennett, 56 W. Va. 146, 49 S. E. 23; McAneny v. Superior Court, 150 Cal. 6, 87 Pac. 1020; Lewis v. Superior Court, 11 Cal. App. 483, 105 Pac. 763; Adams County Court v. People, 48 Colo. 539, 111 Pac. 86; State v. Rose, 124 La. 526, 50 So. 520; State ex rel v. District Court, 47 Mont. 284, 132 Pac.
“When a party has an opportunity of objecting in the lower court that it is proceeding, or is asked to proceed, in a matter without, or in any manner exceeding, its jurisdiction, he ought to make the objection there. It is only fair to the court that the objection should be brought to its attention in some proper form. If no objection is made, the party having every opportunity to object, the court may reasonably infer' that no ground of objection exists; and not only is the court entitled to the advice and suggestions of the party with reference to objections apparent on the record — -there are many cases in which the ground of objection would not appear unless set forth in plea in some form, and it is to be presumed that any valid objection properly brought to the attention of the court, would generally prevail, and that all necessity for a writ of prohibition would be obviated; therefore, the interest of the public in preventing unnecessary litigation as well as consideration for the judge of the lower court demand that the objection should be made at the first opportunity. These are the reasons for the rule, and they indicate its scope and the extent of its application, as the authorities* fully show.” See also 22 R. C. L. 27, 28.
2. Counsel for the petitioners concede this to be the rule, but they contend that this case comes within one of its exceptions, and claim, in the first place, that the rule
“But when the court has power to act in any case, its exercise of jurisdiction over the particular case must be brought to its attention by an objection of some kind be*425 fore resort can be bad to the extraordinary remedy of prohibition.”
The case at bar presents no such facts as were presented in the cases to which reference has been made, and it is apparent that Hill v. Tarver, supra, is clearly against the contention of petitioners. True, the petitioners here had no opportunity to object to the order citing them to appear in court for the purpose of submitting to interrogation, but we have found no case where such order alone has been deemed sufficient to excuse the parties from objecting in the lower court. That order deprived the petitioners of no right; it simply initiated certain proceedings. Every proceeding is ordinarily commenced ex parte in the same sense in which the proceeding involved in this case was commenced ex parte. A petition, for instance, is filed and a summons issued against a party before any notice thereof is given. The opportunity to appear exists after the service of the summons. So the opportunity to appear existed in the case at bar after the service of the citation. In fact, the contention here made is completely answered by the ease of State ex rel First National Bank v. District Court, supra. In that case a receiver was appointed without notice, and still the court refused to grant the writ of prohibition on the ground that no objection to the jurisdiction had been made in the court below. Other similar cases are Ex parte McMeechien, 12 Ark. 70; Ex parte City of Little Rock, 26 Ark. 52; Jennings v. Judge, 56 W. Va. 146; 49 S. E. 23; Board of Education v. Holt, 51 W. Va. 435; 41 S. E. 337; Colbreath v. District Court, 30 Colo. 488, 71 Pac. 387; Ex parte Hamilton, 51 Ala. 62; Adams County Court v. People, supra.
3. Again it is argued that no citation, as required by statute, was served upon the petitioners, and that hence the rule above mentioned does not apply. Our attention is called to section 6735, W. C. S. 1920, which provides that when a personal notice is required to be given, and no
“Citations must be directed to the person to be cited, signed by the clerk, and issued under the seal of the court, and must contain: 1. The title of the proceedings; 2. a brief statement of the nature of the proceedings; 3. a direction that the person cited appear at a time and place specified.”
In this case a copy of the order of the court, certified as correct by the clerk, was served upon the petitioners. This did not, perhaps, strictly comply with the statute, and it is the contention that a strict compliance with the statute is essential in order to confer jurisdiction on the court. In 23 Cyc. 1075, the rule is stated to be as follows:
“A defect in the form or matter of the summons or other process not absolutely destructive of its validity, or an irregularity or defect in the service of it upon defendant, although material and sufficient to cause the reversal of the judgment on a proper application, does not deprive the court of jurisdiction, and therefore does not expose the judgment to collateral impeachment. But if the defect in the process is so radical that it amounts to no process at all * * * there is a want of jurisdiction and the judgment will be impeachable collaterally.” See also 23 Cyc. 995.
Van Fleet on Collateral Attack, in considering in section 329 defects in process, states among other things as follows:
“Hence I conclude that the rule concerning process and service, collaterally, both at law and in equity, is that if information be given sufficient to warn defendant that a*427 judicial proceeding is pending against bim in a particular court, and thei proof of service is sufficient for tbe court to infer that he has such information, the proceeding by default will not be void. This is the rule deduced by me from all the eases.”
Só, too, in 23 Cyc. 994-995, it is said:
“So also defects in the process so radical that it does not serve its purpose of notifying defendant of the suit and the time for proceeding in it will be ground for an injunction against the judgment, but not where the process is sufficient on inquiry as to the action, which inquiry he negligently fails to pursue. ’ ’
See also Town v. Greenlee & Harden, 63 W. Va. 207, 69 S. E. 601, 129 A. S. R. 971; Hollingsworth v. Barbour, 4 Peters 466, 7 L. ed. 922.
These authorities, while not involving the identical question involved in this case, make it doubtful that the objection now under discussion is to a defect jurisdictional in character, and we think that it should, in any event, have been first made in the court below. The case of Burge v. Justice’s Court, 11 Cal. App. 213, 104 Pac. 581, is apropos. In that case it was said:
“Where improper issue of summons or improper service thereof appears, the remedy of the aggrieved party is by motion to quash the service, addressed to the court in which the action was commenced.”
4. It is next contended that this ease does not come within the rule of State ex rel First Nat. Bank v. District Court, supra, for the reason that, as admitted by the demurrer, no application, under oath, as required by section 6831 W. C. S. 1920, was filed in the office of the clerk of the district court of Fremont County, Wyoming, although such application was presented to the judge of the said court before he issued the order for the appearance of petitioners;
“It is unreasonable to suppose that the lawmakers intended so important a paper as the petition which is the foundation of the proceedings, and without which the district court or judge has no power or authority to act, need not be made a matter of record. ’ ’
Whether or not the time of filing the application required by section 6831, supra, is jurisdictional, we need not decide; but that it should be filed, and the persons cited to appear thereafter given a reasonable time in which to file whatever objections are desired to be filed, is required by the plainest principles of justice. Without now deciding the full scope of the provisions of sections 6831-34, supra, we do not think that they were intended simply to subserve the purposes of a pure “fishing bill.” See State ex rel v. District Court, 35 Mont. 318, 89 Pac. 62; People ex rel v. Wyatt, 186 N. Y. 383, 79 N. E. 330, 9 Ann. Cas. 972, 10 L. R. A. (N. S.) 159 (without committing ourselves to all that was said therein). And we think that it was clearly contemplated that the. persons cited to appear should, in the application, be duly informed of the things charged against them, so that they can properly meet them.
The application presented to the judge of the lower court is not, however, before us. He doubtless considered it sufficient when he issued the order for the petitioners in this
“But the rule (of objecting in the lower court) has been qualified, if not changed by recent decisions of the Supreme Court, the purport of which is that when the lack of jurisdiction in the lower court is apparent on the face of the proceedings, it is not fatal to an application for prohibition that no plea to the jurisdiction has been made without avail in said court. This proposition was thoroughly discussed in State ex rel v. Eby, 170 Mo. 497, 518, 71 S. W. 52 and was also passed on in State ex rel v. Aloe, 152 Mo. 644. The effect of these, and perhaps of other recent decisions, is that the refusal to grant prohibition until the lower court has overruled the plea to its jurisdiction, is rather a discretionary matter of practice in the supervising court than a condition precedent to the issuance of the writ; and hence, where want of jurisdiction is palpable, the failure to raise the question below does not necessarily hinder the superior court to interfere, though it may refrain from doing so until an application is made in the lower court. ’ ’
A writ of prohibition was issued in the case of People ex rel v. District Court, 29 Colo. 182, 68 Pac. 242, although no objection was made in the lower court, on the ground, first, because the want of jurisdiction appeared on the face of the record, and second, because public rights were involved, the court however, saying of the contention that objection should have been first made in the lower court the following:
‘ ‘ Ordinarily this argument is sound, and in eases involving only private rights we think we should, in the exercise of judicial discretion, refuse the writ under such circumstances. ’ ’
We have examined numerous cases in which objection in the court below has been held unnecessary. Some of the
The time for appearance fixed in the order of the judge of the district court above mentioned has passed, but we think the action herein has been brought in good faith, so that the petitioners herein should not be held as for contempt for failure to appear at the time so fixed, and the lower court should fix a reasonable time for the petitioners herein to appear before it and make such objections or file such pleadings as they deem proper.
For the reasons indicated, the demurrer filed herein must be sustained.