Oil Well Supply Co. v. Superior Court

EDMONDS, J.,

pro tem.

Petitioner seeks a writ of prohibition against the superior court to prevent it from hearing the account of a trustee of a private trust and making an order thereon. The facts as we shall state them are undisputed.

A number of years ago Wigle & McBride, l’nc., a corporation, executed a trust agreement for the benefit of its creditors, of which petitioner is one. L. T. McCutcheon, Harold A. Gilman and Frank H. Madden were named as trustees, and administered the property of the trust for some time. On March 10, 1930, each of the three trustees had either died or resigned. On that date the predecessor in interest of petitioner filed a petition in the superior court, alleging the existence of the trust without any trustee to administer it, and requesting the court to appoint a trustee. Upon a hearing of this petition the court made an order appointing L. T. Mc-

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Cutcheon sole trustee. This order further provides “that the said L. T. MeCutcheon be and he is hereby authorized and empowered to take possession of any and all books, records, files and papers of said trusteeship and to prepare and render an account of said trusteeship and the business and conduct thereof from its inception to this date”. No appeal was ever taken from this order.

Some three years later L. T. MeCutcheon filed his “First Account Current, Report and Petition for Instructions” which was set down for hearing. Thereafter the respondent court made an order therein approving and settling the account and instructing the trustee as to several matters. In July, 1935, the trustee filed his “Second Account Current, Report and Petition for Instruction”. Thereupon the superior court made an order that the account, report and petition be set for hearing and that notice be given to the creditors and beneficiaries under the trust agreement by publication of the order once and by posting it in three public places in the county not less than ten days prior to the hearing. Petitioner here asserts that the court has no jurisdiction to hear the trustee’s account and fix the rights of itself and others by this proceeding.

Unless the superior court has jurisdiction of the subject-matter before it, any order made will be wholly void. “Jurisdiction in any proceeding is conferred by law; that is, by the Constitution or by statute. Jurisdiction of the subject-matter cannot be given, enlarged or waived by the parties.”