State ex rel. Cotter v. District Court of Second Judicial District , 34 Mont. 306 ( 1906 )

MR. JUSTICE MILBURN

delivered the opinion of the court.

Application for writ of review. On motion to quash order to show cause why writ of review should not issue. The court having on the thirteenth day of February, 1905, appointed C. M. Parr, Esq., as attorney for the alleged children of one Cotter, deceased (mentioned in the statement made in the ease of State v. District Court et al., ante, p. 303, 87 Pac. 614, which see for the other facts herein), did on the ninth day of April of the next year, on motion of the executrix, vacate the order appointing Mr. Parr as such attorney.

That an attorney may be appointed, in the discretion of the court, for minor heirs in probate proceedings is apparent from what is said in State ex rel. Eakins v. District Court, ante, p. 226, 85 Pac. 1022, and Carpenter v. Superior Court, 75 Cal. 596, 19 Pac. 174, and section 2925 of the Code of Civil Procedure.

The court was proceeding regularly in hearing and determining the motion to vacate the order appointing the attorney. As we say in the other Cotter Case, ante, the court may have erred and, if so, we cannot correct the wrong in this proceeding. To abuse discretion is not to act without jurisdiction or in excess of jurisdiction. It may be that these children are in fact the heirs of the deceased, and may have been lawfully acknowledged by their alleged father in writing, and therefore entitled to inherit part of the property. They should have a fair chance to prove their status in a proper proceeding. If this matter were brought before us on petition for writ of supervisory control, a «different question would be presented, and, possibly, the children might be entitled to some relief from this court, but this we may not now decide.

The motion to quash the order to show cause is granted and the proceeding is dismissed.

Dismissed.

Mr. Chief Justice Brantlt and Mr. Justice Holloway concur.