Opinion
No. 27375
Decided February 1, 1939.
Jurisdiction — Subject-matter may be challenged, when — Capacity to sue determined or reviewed, how — Sections 2921, 10504-15 and 11263, General Code — Probate Court empowered to determine jurisdiction in testamentary matters — Writ of prohibition not substitute for appeal.
IN PROHIBITION.
On May 23, 1938, Daniel Cronin died testate. Ila Cronin, his widow, made application to the Probate Cornin, of Stark county for the probate of her husband's will, setting forth in her application that he was a resident of Minerva in that county. The Probate Court found the decedent to be a resident of Stark county, admitted the will to probate, assumed jurisdiction of the administration of the estate and proceeded to determine the inheritance tax.
The foregoing facts are pleaded in a petition in prohibition filed in this court by relator, who is prosecuting attorney of Carroll county and seeks a writ to prevent the respondent probate judge from proceeding with the administration of the estate upon the ground that the testator at the time of his death was not a resident of or domiciled in Stark county, but his legal residence was in Carroll county.
The respondent demurred to the petition, challenging the relator's legal capacity to sue and asserting the petition does not state a cause of action.
Mr. Lamoine Handley, prosecuting attorney, Mr. J. Stewart Ake and Mr. Warren G. Smith, for relator.
Messrs. Hart, McHenry Jones and Mr. Grant P. Ward, for respondent.
Jurisdiction of subject-matter need not necessarily be raised in the first instance but may be raised at any time, even in the reviewing court. Baltimore Ohio Rd. Co. v. Hollenberger, 76 Ohio St. 177, 81 N.E. 184; Sheldon's Lessee v. Newton, 3 Ohio St. 494; 31 Ohio Jurisprudence, 1003, Section 370.
Whether the relator is a "person interested" in the probate of a will within the meaning of Section 10504-15, General Code, and therefore has a duty to perform under Section 2921, General Code, in recovering public moneys withheld from the county treasury or due to Carroll county, and whether he is a proper party under Section 11263, General Code, can be determined in the courts below and be reviewed on appeal. Van Camp v. McCulley, Trustee, 89 Ohio St. 1, 104 N.E. 1004; 30 Ohio Jurisprudence, 786, Section 59.
The Probate Court being vested by Section 8, Article IV of the Constitution with jurisdiction in probate and testamentary matters, has power to determine its own jurisdiction and its decision is subject to review on appeal. State, ex rel. Barbee, Exr., v. Allen, Judge, 96 Ohio St. 10, 117 N.E. 13.
The writ of prohibition lies only when there is no other adequate remedy and is not available as a substitute for a proceeding on appeal. Silliman v. Court of Common Pleas, 126 Ohio St. 338, 185 N.E. 420, and State, ex rel. Nicklaus, v. McClelland, Judge, 132 Ohio St. 447, 8 N.E.2d 565.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS and MATTHTAS, JJ., concur.
HART, J., not participating.