(Download) "State Ex Rel. Hamilton v. District Court" by Supreme Court of Montana # eBook PDF Kindle ePub Free
eBook details
- Title: State Ex Rel. Hamilton v. District Court
- Author : Supreme Court of Montana
- Release Date : January 12, 1936
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 66 KB
Description
Submitted April 27, 1936. Writ of Supervisory Control — Probate Proceedings — When Appointment of Attorney by District Court to Represent Absentee Heir Without Notice Unauthorized — Appointment to be Terminated as Soon as Necessity for Representation Ceases — Order Reciting Necessity for Appointment not Conclusive When Contrary Shown by Record. Writ of Supervisory Control — Motion to Quash Admits Truth of Allegations of Petition. 1. A motion to quash an alternative writ of supervisory control admits the truth of the allegations of the petition for the writ. Same — Probate Proceedings — Appointment of Attorney for Absentee Heir Without Notice Held Error. 2. Held, on application for writ of supervisory control, under section 10370, Revised Codes, authorizing the district court in certain therein enumerated probate proceedings to appoint an attorney to represent minor, nonresident or unrepresented heirs, that the court may act only when necessity for such appointment arises; hence, where no one of the proceedings mentioned in the statute was pending before the court, and foreign heirs were already represented by counsel in the matter of the probate of a foreign will of one entitled to a distributive share of a pending estate, its action in appointing an attorney for the heirs upon its own motion was error, there having been no necessity for such appointment. Same — Appointment of Attorney for Absentee Heir — Record Reciting Necessity for Appointment not Conclusive Where Facts Disclosed Showed Otherwise. 3. Where an order of the district court appointing an attorney for nonresident heirs is under direct attack on the ground that no necessity for the appointment existed under the above statute, the fact that the court's order recited the necessity for the appointment, while perhaps prima facie sufficient, was of no avail where the facts disclosed in the proceeding show the contrary. Minors — In Absence of Showing to Contrary, Parties Presumed to be Sui Juris. 4. In the absence of a showing to the contrary, parties to an action or proceeding are presumed to be of full age and without disability; therefore contention that one of the foreign heirs for whom the court appointed an attorney might be a minor and that for that reason the order as to her should be upheld may not be sustained, the record being silent as to whether she was or was not such. Probate Proceedings — Constitutionality of Section 10370, Revised Codes, Authorizing Appointment of Attorney for Absentee Heir. 5. Quaere: Is section 10370, Revised Codes, unconstitutional in so far as it purports to authorize the district court in certain probate proceedings to appoint an attorney to represent absent or nonresident heirs at their expense without first serving process upon them? Same — Appointment of Attorney for Absentee Heir — When Appointment to be Terminated. 6. The purpose of section 10370, supra, being to enable the court to secure the services of an attorney to protect the rights of those not otherwise represented in a probate proceeding pending before it, the appointment made should be terminated by it as soon as it is made to appear that such persons are represented, since estates should not be mulcted for the benefit of members of the legal profession.
 "State Ex Rel. Hamilton v. District Court" by Supreme Court of Montana # eBook PDF Kindle ePub Free){kind=link}