Broadwater v. Richards , 4 Mont. 52 ( 1881 )

Wade, C. J.

This is an appeal from a judgment of the ■district court setting aside an order of the probate court of Custer county, approving the accounts of Thomas Richards as administrator of the estate of James R. Brooks, deceased, and directing that the administrator, within thirty days from the date of the rendition of the judgment, file with the probate judge a good and sufficient bond as administrator, and before so doing that he retain in possession the money belonging to the estate, and thereupon qualify as administrator according to law, -and proceed legally to the administration of the estate, •.supplying all omissions in the probate record, and giving notice to all persons to file their claims against the estate; and that upon failure to file such bond, the letters of administration will cease, and the said Richards be removed from his official position; and in case of such, failure, that he pay into the hands of the clerk of the court all moneys which have come into his possession as such administrator, and that thg cause be returned to the probate judge for proceedings in accordance with this judgment.

1. There was no motion for a new trial, and hence we cannot look into or review the evidence contained in the record. We have frequently decided that questions of fact cannot be examined if there is no appeal from an order granting or refusing a .motion for a new trial. Alport v. Kelley, 2 Mont. 343; Chumasero v. Viall, 3 Mont. 376; Largey v. Sedman, 3 Mont. 472.

The only question properly before us for consideration, therefore, is whether the judgment is such an one as the district court had jurisdiction to render. Under sec. 432 of the code, appeals from the probate court to the-district court are authorized from orders made on the settlement of administrators. An order approving or disapproving the account of an administrator is in the nature of a judgment, and an appeal from such an order or judgment brings the whole case before the district court for review and adjudication. It may affirm or set aside such an order. It hears the case upon the proofs, and renders judgment as in other cases. The party against whom the judgment is rendered may appeal from the judgment, or he may make a motion for a new trial, and from the order granting or refusing the same an appeal lies to this court, which brings with it the evidence for review.

2. In the absence of any testimony that we can take into consideration, it must be conclusively presumed that the judgment was rendered upon competent and sufficient proofs. And it is fairly to be inferred from the judgment that the testimony established: First. That there was a properly constituted probate court of Custer county, from which an appeal to the district court might have been taken. Second. That the records of said probate court were defective in failing properly to show the appointment of an administrator upon the estate of deceased. Third. That said administrator had failed to qualify as' provided by law. Fourth. That he had failed to give the necessary bond; and fifth. That he had not given notice to the creditors of the estate as required by law.

And so it seems that the administrator appeared in the district court, with no letters of administration showing his authority, and with no bond or oath showing his qualification as administrator, with no proof of notice showing that he had notified the creditors of the deceased to present their claims against the estate, but with money in his hands belonging to the estate, and praying that his accounts as administrator be approved, and that he be ordered to make distribution and be discharged from his trust.

Under such a state of facts, what had the court jurisdiction and authority to do in the premises? The case was in the district court. It had obtained jurisdiction over the subject matter and the parties. For the time being the probate court had lost its jurisdiction. After the appeal, it had no authority to change or modify its decree. The case had passed out of its jurisdiction. It had adjudged the administrator duly qualified and authorized. It had ordered him to make final distribution of the estate. This adjudication and order came before the district court for review. Looking at the judgment in that court, it must have found that the administrator had not been legally appointed and had not properly qualified. But he was in that court. He had moneys in his hands belonging to the estate. It was necessary that this money be protected for the benefit of those entitled to receive it. It was necessary that this protection be afforded then and there. The district courts of the territories are courts of general jurisdiction. They are clothed with chancery as well as common law powers, and having acquired jurisdiction of a case for one purpose, they may retain it for ah purposes. To have done no more than to have reversed the order approving the accounts of the administrator would still have left this money unprotected. No doubt the district court might have ordered the probate court to cause the administrator to give a bond, and what the district court had authority to order the probate court to do in .the premises, it might well do itself. The district court being the appellate court of the probate court, and a court of general jurisdiction, it has the inherent power and authority to make any order in a case properly before it that the probate court might make in the same case.

It follows, therefore, that the judgment of the district court did not exceed its jurisdiction, and the same is affirmed with costs.

Judgment affirmed.