MAE SANDERS, Also Known as MAE DOE, and Whose True Name is to the Plaintiffs Unknown, Administratrix of the Estate of H. C. SANDERS, Deceased, Appellant,
PHOEBE SANDERS and HALSEY SANDERS, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed as modified.
Mr. Thomas W. Nealon, for Appellant.
Messrs. Cox & Moore, for Appellees.
[52 Ariz. 158] LOCKWOOD, J.
This is an appeal from a judgment of the superior court of Maricopa county, in favor of Phoebe Sanders and Halsey Sanders, hereinafter called plaintiffs, against Mae Sanders, as administratrix of the estate of H. C. Sanders, deceased, hereinafter called defendant. The proceedings were started by the filing of what is denominated a "complaint" in the superior court of Maricopa county, on [52 Ariz. 159] January 25, 1927. It set up, in substance, that plaintiffs were the surviving wife and only child, respectively, of H. C. Sanders who died in Arizona on December 22, 1924; that in 1925 a certain writing purporting to be his will was admitted to probate, and letters of administration, with the will annexed, issued to defendant, and that she thereafter qualified as such administratrix; that by the terms
of said writing, defendant Mae Sanders was named as the sole legatee and devisee of H. C. Sanders, but that such writing was not written nor caused to be written by the said Sanders, but was written or caused to be written by the defendant and presented to the court for the purpose of cheating and defrauding the plaintiffs out of the property of Sanders. It further alleged that the defendant was not, and never had been, the wife of H. C. Sanders, for the reason that plaintiff Phoebe Sanders was married to him in the state of New York, in the year 1876, and such marriage was never dissolved nor annulled. There was a further allegation that plaintiffs had been ignorant of the proceedings to probate said will and the fact that it was a forgery until about March 1, 1926. The prayer of the pleading was that the order admitting the writing to probate as a will, and appointing the defendant as administratrix, be vacated and set aside and the alleged will be declared null and void, and that a proper administrator be appointed. Summons was issued in the usual form for a civil action and served upon defendant. An amended complaint was filed on June 23, 1928, and a citation issued thereon, which was also served on defendant. Thereafter she appeared specially for the purpose of quashing the citation. The motion to this effect was overruled, and the court, over defendant's objection, combined the present case with the probate proceeding known as the "Estate of H. C. Sanders." Thereafter defendant filed a special [52 Ariz. 160] appearance, moving to set aside the order of consolidation, on the ground that the court lacked jurisdiction of the subject matter and of the person of the defendant. No further proceedings were taken for some four years, when counsel for plaintiffs moved the case be set for trial. Thereupon defendant, expressly reserving her plea to the jurisdiction, demurred to the complaint on the ground that the action was barred by the statute of limitations, and again objected to the jurisdiction of the court, demurred generally to the complaint, and filed many special demurrers which, in effect, raised the same objections of the want of jurisdiction over the subject matter and the person of the defendant, and then answered, alleging that plaintiff Phoebe Sanders was not the wife of H. C. Sanders at the time of his marriage to defendant, and denied generally and specially all the other allegations of the complaint. The case came on for trial before the court sitting with a jury; special interrogatories were submitted to the jury, and they were answered to the effect that the alleged will was not in the handwriting of H. C. Sanders; that he was not an unmarried man at the time he contracted marriage with the defendant Mae Sanders in 1909, and that plaintiff Halsey Sanders was the son of H. C. Sanders. The court adopted these interrogatories, finding all the controverted facts in favor of plaintiffs, and rendered judgment thereon.
There are fifty-two assignments of error, which are grouped by defendant under twenty-two propositions of law. We will consider the case in such manner as seems best to us in order to determine the questions of law which are material to the appeal.
The first is as to the jurisdiction of the court over the subject matter and the person of the defendant. It is the position of defendant, in substance, that the suit started by plaintiffs was one in equity, and that [52 Ariz. 161] the court had no jurisdiction to set aside a will already admitted to probate in such a proceeding; that the attempted consolidation of the suit with the proceedings in probate of the estate of H. C. Sanders was made without jurisdiction, and that the defendant was not properly brought into court so that a judgment could be rendered against her. The determination of these questions involves some consideration of the nature of our judicial system.
Originally law, equity and probate were separate and distinct systems, administered by different courts acting independently of each other, and usually with some jealousy and little cooperation. As a result, the litigant, at his peril, was compelled to see not only that he had rights but that he attempted to enforce those rights in the proper court, and in the proper form of action, for if he was mistaken as to the court which had jurisdiction to protect his rights or as to the remedy applicable thereto, judgment went against him, frequently without opportunity for another proceeding in the right court and form of action. The expensive and cumbersome nature of this tripartite system became more and more apparent, but it was not until about the middle of the last century that a serious attempt was made to remedy this situation. The state of New York was probably the first to adopt a comparatively simple, logical and workable system of procedure which could handle all classes of litigation. California quickly adopted the New York procedure, and most of the western states, including Arizona, have followed California very
closely. Under our system there is but one court of original jurisdiction, which handles all litigation, with the exception of small matters which are still lift to the justice court. This court is known as the superior court, and by our Constitution it is expressly given [52 Ariz. 162] jurisdiction of all cases of law, equity and probate, together with all special proceedings not otherwise provided for. But the Constitution which adopted this system did not thereby abolish the different remedies which previously existed under the common law, equity and the statutes of probate. It merely provided, as was said in Re Burton's Estate, 93 Cal. 459, 29 P. 36, 37:
"... The superior court, while sitting in matters of probate, is the same as it is while sitting in cases in equity, in cases at law, or in special proceedings; and, when it has jurisdiction of the subject-matter of a case falling within either of these classes, it has power to hear and determine, in the mode provided by law, all questions of law and fact, the determination of which is ancillary to a proper judgment in such case. This is an incidental power pertaining 'to all courts for the purpose of enabling them to exercise the jurisdiction which is conferred upon them.'"
it is of course true that where the method of procedure is fixed by statute, the court must follow that method, but it is the same court at all times. Our legislature has in many respects simplified and consolidated the methods of procedure previously exercised by the different courts. So far as proceedings in law and equity are concerned, they are initiated by the same kind of pleading. Section 3746, Rev. Code 1928, says:
"Contents of complaint. The complaint shall set forth the names of the parties, a concise statement of the cause of action, without distinction between actions at law and in equity, and the ...