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State v. District Court

December 31, 1916

STATE OF NEVADA, EX REL. F. FREYESLEBEN, AUSTRO-HUNGARIAN CONSUL, RELATOR, V. NINTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WHITE PINE, AND HON. C. J. MCFADDEN, JUDGE OF SAID COURT, RESPONDENTS.


A. G. Breeland, for Relator.

G. F. Boreman and A. Jurich, for Respondents.

By the Court, McCarran, J.:

This is an original proceeding in mandamus.

On November 22, 1911, one A. B. Witcher, of Ely, White Pine County, Nevada, was appointed administrator of the estate of Thomas Odolovich, deceased. Subsequently, proceedings were instituted in the lower court, by and through the representatives of the Austro-Hungarian consul, for the removal of the administrator theretofore

[40 Nev. 163, Page 165]

appointed, and for the appointment of J. B. Dixon, Esq. The petition presented in the lower court for the removal of the administrator sets up, among other things, the assumption of control by A. B. Witcher as administrator of the estate of Thomas Odolovich, deceased; the filing by the administrator of an inventory and appraisement of the property and effects belonging to the estate; and certain other acts on the part of the administrator, such as a compromise settlement with the Giroux Consolidated Mining Company for the death of the deceased, the sale and disposition of certain property by the administrator, alleging in this respect failure on the part of the administrator to properly or legally conduct such sale and failure to make proper accounting for the proceeds thereof. The petition further relates failure on the part of the administrator to properly save and preserve property and effects of the estate.

The administrator, being cited to appear and show cause why his letters should not be revoked, responded by answer. On the hearing by the lower court, evidence was offered pro and con the several matters raised by the petition; and after the submission of the matter, an order was made, which we find in the following words:

“In view of the authorities cited and the showing made at the hearing, the petition for a dismissal of the administrator, A. B. Witcher, will be denied, and the petition dismissed, with costs against petitioners, and it is so ordered.”

Petitioner in the lower court comes here by original proceedings in mandamus praying that the writ issue commanding the district court:

“(1) To vacate the order of said court denying and dismissing the relator's petitioner for the removal of the administrator, to restore the petition on the calendar in said court for further proceedings, and to allow the appearance of the said Austro-Hungarian consul on behalf of said alleged heirs, and to decide said matter upon its merits.

[40 Nev. 163, Page 166]

“(2) To vacate the order of said court refusing and disallowing the application of said consul for a continuance of the hearing upon the account of the administrator and refusing counsel additional time in which to file exceptions to the account.

“(3) To vacate the order of said district court approving the amount of the account of the administrator and to declare that said account be declared open for filing objections, and that the consul be allowed to appear therein and be allowed a reasonable time to prepare and file objections to said account.”

The right of petitioner to a writ of mandamus is challenged by respondent, upon the ground that the matter was regularly heard and determined by the lower court and therefore mandamus will not lie to review the proceedings; further, that petitioner here has a ...


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