(dissenting). — This case does not present a conflict between two courts of concurrent jurisdiction, each seeking to obtain jurisdiction over the same subject-matter. The adjudicated cases upon questions of concurrent jurisdiction are not in point.
One court only has jurisdiction to administer upon the estate . of Pish, deceased, and that court. has exclusive jurisdiction. Under the facts of this case, the court which had jurisdiction was the court of the county in which the deceased was a resident at the time of his death. (Prob. Prac. Act, § 6.)
The opinion of the majority of this court cites authorities to the effect that the writ of prohibition will not lie, unless it appears that the District Court of Cascade County had not jurisdiction to appoint Dean as administrator. To this, of course, I agree.
But had the Cascade County court jurisdiction ? Let us take the point of view of that court on the twenty-eighth day of November, 1891. On that day an application was to be heard asking the appointment of Dean as administrator. On that hearing it was shown to that court, by a certified copy of the order, that on November 25, 1891, W. S. Spalding was appointed administrator of the estate by the Lewis and Clarke County court. On November 28, 1891, the Cascade court either had jurisdiction to appoint Dean administrator, or it had not. There was no concurrent jurisdiction between it and the Lewis and Clarke court. The latter court had acted. It had appointed Spalding. Its jurisdiction appointing Spalding of necessity included the jurisdictional fact that the deceased was a resident of Lewis and Clarke County at the time of his death. The Cascade court was met upon the hearing of November 28, *801891, with the judgment of the Lewis and Clarke court appointing Spalding, and thus determining that deceased was a resident of Lewis and Clarke County at the time of his death. This judgment of the Lewis and Clarke court was not attacked. The jurisdiction of that court is not assailed. Therefore, its jurisdiction is admitted; the validity of its judgment is necessarily conceded. If this be true, if one court only had jurisdiction, and if the jurisdiction of the Lewis and Clarke court is thus conceded, as it must be in the premises, what jurisdiction had the Cascade court? Absolutely none, as a matter of course. The court in which the administrator is first appointed, as long as that appointment is not attacked, has jurisdiction to the exclusion of another court, even though the application for appointment was first filed iii the other court. Therefore the order of the Cascade court, appointing Dean as administrator, was without jurisdiction, and it was void. This is the view of the adjudicated cases. (See Holmes v. Oregon etc. R. R. Co. 7 Sawy. 380; 9 Fed. Rep. 229; Freeman on Judgments, § 608; Irwin v. Scriber, 18 Cal. 500; Griffith v. Frazier, 8 Cranch, 9; Haynes v. Meeks, 20 Cal. 288; 2 Black on Judgments, § 808; Ryno’s Ex’r v. Ryno’s Adm’r, 27 N. J. Eq. 522; Oh Chow v. Brockway, Or. Dec. 21, 1891, 28 Pac. Rep. 384; Giddings v. Steele, 28 Tex. 749; 91 Am. Dec. 336; Andrew v. Avory, 14 Gratt. 236; 73 Am. Dec. 335; Croswell’s Executors, § 48; People v. While, 11 Ill. 341; Bolton v. Jacks, 6 Rob. [N. Y.] 166.) Cases holding a contrary view have not been presented to us.
But it is said that relator has a plain, speedy, and adequate remedy by an appeal from the order appointing Dean. We find in 1 Black on Judgments, § 170: “A void judgment is in reality no judgment at all. It is a mere nullity. It is attended by none of the consequences of a valid adjudication. Nor is it entitled to the respect accorded to one. It can neither affect, impair, nor create rights. As to the person against whom it professes to be rendered, it binds him in no degree whatever. It has no effect as a lien upon his property. It does not raise an estoppel against him.....It is not necessary to take any steps to have it reversed, vacated, or set aside. But, whenever it is brought up against the party, he may assail its pretensions *81and show its worthlessness. It is supported by no presumptions, and may be impeached in any action, direct or collateral.” Such is the judgment of the Cascade County court appointing Dean as administrator. I do not understand that it is necessary to appeal from a void judgment. I am of opinion, under all the circumstances of this case, that an appeal from a void judgment is not a plain, speedy, or adequate remedy.
It is said in the opinion of the majority of this court: “ The District Court of Cascade County first obtained jurisdiction by the filing of the petition of Dean.” The authorities cited in this connection are all cases of concurrent jurisdiction between two courts, which question, as above remarked, is not the one now before this court; and if it be true that, in case of concurrent jurisdiction between two courts, the one in which proceedings are first commenced is the one that attains jurisdiction, this view is not authority for holding that, in a case between two courts wherein one court only has jurisdiction, the one in which proceedings are first commenced secures that jurisdiction. (See list of cases supra.)
Again, it is said by the majority opinion that the chief question involved in this application was whether said Fish was, at the time of his death, a resident of the county of Cascade or the county of Lewis and Clarke. It is again said in that opinion : “The evidence which was submitted to both tribunals, and upon which the jurisdiction to appoint an administrator is founded, is not before us, and we are unable to decide this fundamental proposition.” Then, if the court is unable to decide that fundamental proposition, we are thrown back to the judgment of the Lewis and Clarke court, which, being prior to the hearing of the Cascade court, and being unassailed, excluded the Cascade court from jurisdiction, as the authorities which I have above cited hold. And the cases cited in the majority opinion hold, as far as they are applicable, the same view. A careful consideration of those cases convinces me of this, and renders a discussion of them unnecessary, but, for the sake of illustration, I will notice one of them, namely, Fisher v. Bassett, 9 Leigh, 134; 33 Am. Dec. 227. The opinion in that case says: “Now, I think the principles of law, and the reason and convenience of the thing, all conspire to prove that the court of general *82jurisdiction, upon application for administration, is not concluded by a grant of administration by a court having no jurisdiction.” That is very true, but, if that, case supports the view of my learned associates, then it must be construed that the Cascade court is not concluded by a grant of administration by the Lewis and Clarke court, which had no jurisdiction. Now, if it appears that the Lewis and Clarke court had not jurisdiction, then the case of Fisher v. Bassett would be applicable; but the authorities are, as above remarked, that the Lewis and Clarke court, having first appointed the administrator, obtained jurisdiction to the exclusion of the Cascade court.
The conclusion of the majority of this court is that “it is not apparent upon the record that the District Court of the Eighth Judicial District is without jurisdiction.” But I cannot but entertain the opinion that under the facts as presented, and under the authorities, it does appear that the Cascade court acted without jurisdiction, and that there is no plain, speedy, or adequate remedy by appeal, and that therefore the writ of prohibition should issue.