Wetzler v. Fitch

I. The Probate Court not being an inferior tribunal, the District Judge has no jurisdiction in the premises.. (Code Civil Procedure, secs. 98 and 1035 : Pond v. Pond, 10 Cal. 495.)

II. “ Mandamus lies to compel an inferior tribunal to perform a duty enjoined by law, if it refuses to do so.” (Lewis v. Barclay, 35 Cal. 213.) There is no law requiring the Probate Judge to set for hearing the account of a deceased executor. This point was settled in the case of Bush v. Lindsay, 44 Cal. 124.

HI. K Julius Wetzler had a claim against Eosanna Keenan’s estate he should have presented it to the administrator of that estate. If it had been rejected by him, he had a plain, speedy, and adequate remedy by suit in the proper Court. (Secs. 1493 to 1501, Code Civil Procedure.)

IV. The presentation of the account to the Probate Court, by Julius Wetzler, was an act of administration on the estate of Eosanna Keenan, deceased. If he can do one act of administration on that estate, as the executor of John C. Keenan, deceased, he can do all. “ No executor of an executor shall be authorized, as such, to administer on the estate of the first testator.” “ No person has any power as an executor until he qualifies.” (Sec. 1353, Civil Procedure; sec. 1373, Civil Code.)

Y. Before the Probate Court can legally set a day for the hearing of an account, it must first be satisfied that it has jurisdiction over the person who presents the account and the subject-matter ; therefore the action of the Court in refusing to fix a day for the settling of the account was a judicial act which [641]cannot be reviewed by mandamus proceedings. (People v. Pratt, 28 Cal. 168 ; People v. Russell, 46 Barb. 28; Francisco v. M I. Co. 36 Cal. 283.)

The petitioner alleges the order of the Probate Court to be erroneous, and asks the District Court to compel the Probate Judge to make a different order, thereby giving the District Court appellate powers, instead of appealing directly to this Court; for the order of the Probate Court, denying petitioner’s application, amounted to a rejection of his account, if it could be properly called an account.

George Cadwalader, for Bespondent.

I. The District Court has jurisdiction of a mandamus proceeding to compel the Judge of a Probate Court to perform a duty which pertains to his office. The constitutional organization of the District Court is such that it has the plenary jurisdiction of a common-law Court. It is not in any sense a Court of limited or inferior jurisdiction. As was well said by this Court in a case before it in which the question of jurisdiction was presented: “ The general power of supervision over inferior tribunals which pertains to the Court of King’s Bench in England, pertains to the District Court in this State.” (Milliken v. Huber, 21 Cal. 169.)