Opinion
No. 8,335.
Decided May 20, 1942.
Appeal from the District Court of Meagher County and Benjamin E. Berg, Judge presiding.
Mr. Hugh R. Adair, for Relator.
Decided May 20, 1942.
Relator applies for a writ of supervisory control, or other appropriate writ, to annul two probate orders made within jurisdiction by the District Court of Meagher county in the William Gaspar Estate. The first was made on December 19, 1941, and revoked petitioner's letters of administration in said estate. The second was made on May 4, 1942, appointing C.A. Linn, relator's former attorney in connection with the estate, to act as attorney for the two foreign heirs thereof. Relator is a brother of the deceased, and the two foreign heirs are a brother and a sister. All that the said attorney has yet attempted to do on behalf of the foreign heirs is to petition for the appointment of a general administrator, and the writ is sought here because that petition is pending in opposition to plaintiff's petition and nomination of a general administrator, apparently under the misapprehension that the attorney may exercise the heirs' personal power of nomination and that his nominee would thus rank equally with relator's.
It appears to the Court that if relator's objections are valid, he has a remedy against the first order by way of motion under section 9187, Revised Codes, or by an equity suit in the district court, and that his proper procedure as to the second order is first by motion in the district court, as in State ex rel. Hamilton v. District Court, 102 Mont. 341, 57 P.2d 1227.
The situation is not altered by the fact that at the moment, due to disqualifications, there is no district judge designated to hear such matters, for the proper pleading may be filed with the clerk of the district court, and the Judge of the district requested to call in another judge to assume jurisdiction thereof.
The application for an alternative writ is therefore denied.