The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1896-04-19
ONE THING DECIDED
An Important Question in the Davis
Case Passed on by Judge Mediation.
REASONS GIVEN AT LENGTH
The Motion to Ouash the Petition
and Citation OF elizabeth Smith
for Revocation of the Pro-
bate of the VIII.

on a motion to quash the petition and
citation of Elizabeth A. Smith FOR the
revocation of the probate of the will.
The court sustained the petition, but
ordered the citation to be set aside in
an order entered as follows:
I'm the matter OF the petitio n of
Elizabeth A. Smith to revoke the pro-
bate of the will of Andrew ]. Davis,
deceased-The motion in writing of GER
tain parties defendant therein named,
appearing specially for the purposes
of said motion only. to dismiss the pc
tition of Elizabeth A. Smith filed In
the matter of the estate of Andrew j.
Davis. deceased, praying the revocation
of the probate of the will therein and
to quash the citation issued on said
petition and the service thereof having
been heard and fully considered: Ii is
ordered that the motion to quash said
citation and the service thereof be and
the same is by the court sustained,
upon the grounds and for the reasons
set forth in the grounds of said mo-
ton, and marked or numbered T., H.,
III. and ~, and for the further reason
therein stated: That said petition DIS
closes that one Pet Davis was and u
a devisee under the will OF Andrew j.
Davis, deceased, the probate of which
is sought to be revoked i'm this proceed.
ing: that under and by virtue Of the
statutes of the state of Montana all
devisees mentioned in the will or their
personal representatives, IL any OF them
are dead. are necessary parties de-
PENDANT to this proceeding; that neither
Pet Davis nor her personal representa-
tives are made parties defendmfa to-
this proceeding or named as such in
said citation. Said citation and the
service thereof Is therefore quashed
and set aside. II is by the court fur
ther ordered that said motion be and
the same is in other respects overruled
and denied"
In giving his reasons for sustaining
the motion In part and overruling in
other respects the court said:
The motion filed herein to quash the
citation issued on the petition of Eliza
beth A. Smith specifies particularly
and clearly the reasons why the same
should be sustained and the order en-
tered by the court designates the
grounds mentioned in the motion upon
which IL is based, and In view of these
racts and the plain requirements of the
code, which have not been complied
with as thereby pointed out. any ex-
preston of opinion by the court upon
this branch Of the motion seems un-
necessary
observing then the grounds of the
motion to dismiss the petition 1 find
that the court is asked to dismiss the
petition for the reason that one John
Downward is made a party defendant
and named in said citation and that
there Is no allegation in the petition
that said person now has or ever had
any interest In said estate. 1t is, there
fore, claimed that there is a misjoinder
of parties defendant in said proceed
ing. Admitting this ground to be en-
trely true. IL affords no reason why
said petition should be dismissed.
THE court has very full control of
n Tor Nf Iii.
tionable right of its own motion II
necessary TO dismiss the proceeding as
TO any unnecessary or improper party.
The right of the parties who appear
by this motion to make the objection
urged may be admitted without ad-
hitting that the proceedings can ba
further affected thereby than to be
dismissed as to this defendant, Down
ard.
Another ground of the motion TO
dismiss is that one Pet Davis, a de-
visee named in the will and in the pc
tition or her personal representatives
are not made parties to this proceed
ing or named as such I'm the citation
and that there is, therefore. a defect |
of necessary parties herein.
las l have already indicated, this Is |
a reason why the citation should be |
quashed, but since Pet Davis is named |
In the petition as a devisee under the |
viii and IL does not appear therefrom /
that she is dead, the petition is not in /
respect to her defective and should |
therefore not be dismissed for the rea-
son assigned.
1T is further stated that the pro-
ceedings. show upon their face that |
there is a defect of necessary parties |
defendant, and that this court has no |
jurisdiction to hear or consider the pc
ttion or citation. or any matter or
things therein stated or set forth and /
no jurisdiction to bring in necessary
parties. Since IL is the duty of the |
clerk to issue all proper citations with
out the order of the court, the aues-
tion as TO whether or not another cita-
tion can be issued upon the petition
filed is not now before the court for
determination. The objection that the
court has no jurisdiction TO bring in
necessary parties presents a somewhat
similar question. i pass these questions
at this time, without expression of
opinion for the reason stated and for
the further reason that counsel have
indicated to the court their desire TO |
be heard on the question of petitioners
right TO amend or to have another CT
tation issued
Whether the filing Of a petition
containing allegations of substantive
facts for the revocation of the probate
OF will within the time allowed by
the code for filing petition for the
revocation of the probate OF a will.
will give the court jurisdiction TO en-
terrain the petition and adjudicate ma
terial Issues. as TO the validity Of the
Will raised thereby; or whether Il is
necessary 10 the courts Jurisdiction
that petition in all respects sufficient
and complete shall be filed and a legal
citation issued thereon within said
time. and whether any amendment
may be made or allowed thereafter or
at all, are questions which may be
presented hereafter.
"A further ground OF the motion 10
dismiss is that said petition does not
show or disclose the title OF the pro-
wherein the same is sought
10 be filed.
"A petition praying the revocation OF
he probate Of a will should be filed in
he matter Of the estate. 1t should