*1 Supreme has determined Court Since the the orders Pub- “review” court over is a us Commission, case before I would lic Service evidence, order reviewing affirm after Commission. Public Service Reported N. E. 2d 770. Note. — Company. Lumber et al. Forbes Demma v. Rehearing- 19,506. December 1961. Filed [No. March 1962.] denied *3 Lowther, Indianapolis, L. of and W. Richard Curtis Kokomo, Roll, appellant. for of Gibson, Jr., Indianapolis, appellee. F. of for Thomas before us from the matter comes J . This Cooper, appellee, County of Marion wherein the Probate designated Company, filed what was Forbes Lumber Company Lumber for as, “Amended Claim of Forbes Lien”. Mechanic’s of Foreclosure designated as “Amended Claim of pleading of Mechan- Company for Foreclosure Forbes Lumber omitting caption, as Lien”, reads follows: ic’s claimant, Forbes Lumber Com- now “Comes corporation or- corporation, pany, Indiana an existing pursuant laws of ganized and way filing Indiana, of and its claim of State defendants, Court, complains of the Probate in the Matracia, Demma, P. Executor Michael Mary of Mary Demma, L. of and James Estate alleges Johnson, of claim and action cause says:
207 June, “1. day or That on about of 4th 1956, and all at times mentioned hereinafter until August 31, death, the date of her the de- fendant, Mary Demma, was the owner of fee simple following described real estate County, Indiana, Marion to-wit: “Part of Out Lot 21 of the Donation Lands in City Indianapolis, particularly of more de- scribed as follows: “Beginning at Out corner said the Northeast of along
Lot thence line said West the north of feet; Lot Out 30 thence feet thence South Lot, East the East Out feet to line of said beginning, place thence North 30 otherwise of feet to the St. known as S. East day That some time on about the 4th “2. June, 1956, Mary and while Dem- the defendant ma was the owner of the real afore-described estate, said defendant did with one James contract L. Johnson to erect on aforesaid construct premises lasting certain improve- valuable and ments, house to-wit, dwelling repair remodel and at address, improvements, and other the exact nature of which is unknown claim- ant well but known to defendants and each them. “3. That construction and remodel day thereof, June, on and between the 26th day 1956, inclusive, and the 8th October, special at request instance said de- fendant, Mary contractor, Demma, and her James Johnson, claimant, L. did James Company, Forbes Lumber furnish, defendant, sell and deliver to said L. specific Johnson for use in and on, improvements premises the aforesaid cer- building tain materials fair and reasonable $294.53, value agreed and which was also the *4 thereof, price all specifically and of which is more in a of and set forth and filed herewith Bill Particulars attached hereto part made a of this com- plaint and marked A.’ ‘Exhibit That “4. all of the building aforesaid mate- rials, except those returned for credits as set A,’ forth aforesaid ‘Exhibit specifically were prem- upon improvements on said used in and plaintiff by ises; defendants, Mary said and there is now due that P. Ma- Michael Demma and Mary
tracia, Estate as Executor Demma, $294.53, which sum is and said the sum of owing wholly past due, unpaid. now and day says 4th on the “5. Plaintiff further that days 1956, December, from and within aforesaid furnished as materials were time said they estate, the office filed in on real in and said County, Indi- State of Marion Recorder of writing to hold their intention ana, a notice real described above Lien on said a Mechanic’s out the extent amount and to set for the recorded in said therein, notice was said which 566, Instrument in Lien date office on said Record herewith, copy filed of which is a No. hereto, part hereof and marked made attached ‘Exhibit B.’ filing owner, prior “6. That to this said Suit August 31, 1957, Mary Demma died on defendant and that by Will, duly probated in this and filed Matricia, brother, Court, Michael P. her defendant qualified and Executor named has was Estate of Demma; further, Mary Michael and Mary Matricia, the estate of as Executor of P. pendency Demma, mail of the notified was September 1957. materials claim lien and this failing says, receive “7. Plaintiff further to payment of its lien demand of the Executor Attorney, compelled it has been his and attorney, and the services of an did employ Gibson, Jr., prosecute F. to commence and Thomas action, fee for the serv- a reasonable attorney sum of of such $200.00. ices long been and unreasonable “8. there has That payment delay of said labor and mate- plaintiff rials, is entitled interest and that per per six June at cent thereon from annum. owing due, wholly is now “9. That there attorneys fees, principal, unpaid of interest real $550.00; that said estate is sum division; valid said lien susceptible subsisting first lien on and *5 plaintiff, estate; said above decribed real the have Company, Lumber entitled to Forbes is other as same foreclosed estate sold and said real execution, proceeds upon and the
lands sold arising payment or re- applied the therefrom any of found due herein. duction amount “WHEREFORE, claimant, Lumber Forbes defendants, judgment against Company, prays Ex- Matricia, Mary P. as Demma and Michael Demma, Mary in the sum ecutor of the Estate of and its claim filed for this costs $550.00 Court; and valid lien be Probate subsisting that said declared above said first lien on and prior superior all and described real and to. every liens and encumbrances thereon other name and foreclosed, nature; the same be sold real other lands are estate sold as and said execution, proceeds arising there- upon and the payment from, applied to reduction claimant, all any other and for found due this amount equitable premises.” proper relief in the and
Signature and Jurat were appears from the record that issues
It 18, 1960, cause March properly closed and on finding judgment. and court for was submitted evidence, the court all the the conclusion of After judgment: following finding, decree and entered by parties person coun- now “Come Forbes Lumber the amended claim sel and being Company same ing the denial at issue trial, for find- by defendants is submitted decree. during on “And the course trial and claimant cause is as to motion dismissed Johnson, James L. which dismissal the defendant approved the Court. being evidence submitted and the “And the hearing argument being of counsel and premises duly finds: advised corporation the claimant is an Indiana “That the In- a materialman under the terms of and diana Estate, Real Law on Mechanics’ Lien that the claimant did furnish and deliver James Johnson, L. contractor for on. real estate of use Mary Demma, the deceased de- hereinafter scribed, by the certain that were used materials keeping contractor premises said on with said repairs the provements tofore terms two and im- contracts property, on said into there- entered Mary the said Demma *6 Johnson, James L. contractor. paid “That said in full for contractor was serv- contract, ices and materials on one the on but other, claimant, and the Forbes Lumber Company, paid was not for materials in full the furnished and delivered said contractor to use on the said real estate of the decedent here- inafter described and used execution of in the by contractor; said said contracts claimant, unpaid “That the balance due said Company, thus Forbes Lumber for the materials premises used on the de- and the furnished ceased is Two Hundred fifty-three Ninety-four dollars and ($294.53), on which cents interest delivery, due from the date of to-wit: Octo- last 8, 1956, Fifty-five ber amount of dollars eight-six ; ($55.86) and cents “That under the terms of the Mechanics’ lien law of Indiana the said entitled claimant is a Mechanic’s Lien on the real estate of the de- described, keep- ceased hereinafter and that ing with said Mechanics’ Lien Law due notice of holding a by the of Mechanic’s Lien was filed Company pre- said scribed Lumber Forbes within the time by law, and the claim to enforce said lien pre- was filed in this estate within the time law; scribed “That under the terms of Indiana Probate the (Acts Chapter 112, 1413, Page Code Section 295) the administration of decedent’s estate is a proceedings real possession in rem and the per- estate of deceased is vested in the charged representative, who is sonal with col- earnings lecting ing therefrom, pay- and rents keeping buildings thereon taxes and repair fixtures thereon tenantable by insurance, protected his control and under lien, right claiming any or any person and that right Indiana under said said Probate Code has a real estate right claim, lien such assert having against such real estate in court estate. said of the administration of keeping with “The Court further finds provisions Code Indiana Probate of the said real Lien Law on Mechanics’ the Indiana Page (Acts 1909, Chapter 116, Section estate 295) said lien shall and extent of date delivery on of materials the date first lien job, and said to-wit: June right, and interest shall extend all the title owned hereinafter described said real therein estate Demma, Mary pro- deceased said Law; Lien Mechanics’ in said Indiana vided herein- real deceased “That estate subject Lien to a Mechanic’s described is after in under a materialman of said claimant as favor Law Mechanics’ Lien Indiana of said terms in rem entitled to specifically described for hereinafter real estate claim, plus interest and attor- amount of its of said ney’s the terms Indiana under fees Law; Lien Mechanics’ Mary Demma, *7 deceased, the death “That the enlarge abridge rights nor did the parties, and that inasmuch as the real estate part in said lien is involved estate upon by the assets of the being deceased and is said administered who, executor, Executor the as such possession right real said estate and has duty collect the rents and and said the fore income from manage during and estate the same real administration, properly claim said be- this Court administration this estate; further finds the “The Court claimant en- attorney in titled to recover fees this action un- terms of said Indiana der Mechanics’ Lien attorney fees, reasonable and Law by as shown herein, evidence One Htmdrea and ($150.00). Fifty Dollars THEREFORE, ORDERED, “IT IS ADJUDGED claimant, and DECREED that Forbes Lumber Company, judg- corporation, an Indiana have rem Dol- in sum of Five Hundred ment Thirty-nine ($500.39), lars cludes fifty-three in- and which cents Ninety-four and Two Hundred Dollars ($294.53) principal of cents on the claim, eighty- Fifty-five claimant’s Dollars and ($55.86) interest, six cents and and One Hundred Fifty ($150.00) attorney against Dollars fees Executor, Matracia, Michael P. as Executor deceased, Mary Demma, of the estate of said judgment being charge upon in rem a lien hereinafter real estate described. ORDERED, “IT IS FURTHER ADJUDGED DECREED, AND pany, said Com- Lumber Forbes corporation, an Indiana real has a lien on said estate as a materialman under the terms Indiana Lien on Real Estate. Mechanics’ Law FURTHER, ORDERED, “IT IS ADJUDGED keeping provisions and DECREED that with 1953, (Acts Chap- of the Indiana Probate Code 1413, Page 295) ter Section Indiana and the (Acts Lien Law on real Mechanics’ estate Chapter 116, 4, Page 295) the Section date and extent of said lien shall be the of the first de- date livery job, of materials on to-wit: June said right, lien shall extend all the and said hereinafter title described interest said real estate Mary owned therein said deceased Demma, Lien Law. provided Indiana Mechanics’ said ORDERED, “IT FURTHER IS ADJUDGED judgment DECREED that per- is not a judgment against money sonal said Executor to such but as executor and said estate is in rem the real estate hereinafter described. ORDERED, “IT FURTHER IS ADJUDGED any DECREED sale in this estate of described, existence, hereinafter real estate proper position priority status and of this judgment under the terms of the Mechanics’ Lien recognized. Law be ORDERED, “IT FURTHER IS ADJUDGED and *8 hereby DECREED said Executor au- judgment pay to to said said Forbes
thorized
213 liquid portion of Company Lumber out of provided residuary any, all if general paid are claimants creditors expenses and in costs said real estate shall be full and administrative payment full, upon of paid impressed judgment hereby said on the lien Pro- terminated and satisfied. further, not be should Executor said vided able to hereof, pay the terms claim within petition then this Court Executor shall the said for an order sell said real to for instructions estate satisfy said lien. hereinafter described to judgment “That real estate involved this subject re- the lien and above to follows: ferred is as “ City No. 21 Indian- ‘Part of outlot apolis follows: described as “ ‘Beginning corner of outlot at the northeast City Indianapolis, 21 in thence south No. 30 feet, feet, 125 north 30 feet, thence thence west beginning, feet, place thence east being 502 South known as East Street ” County, City Indianapolis, Indiana.’ Marion within, Thereafter, proper appellant time the trial, among charging, for a filed his motion new many reasons that “the decision of the court is con- trary to motion was overruled. law”. Said matter we are called determine first appeal pleading or not is whether the amended filed is in truth and fact a claim in the court below Code, of decedent under the estate Probate complaint a to foreclose mechanic’s lien or is it Lien ? Mechanic’s Statutes under the foregoing review, pleading we, construe the on If then, course, claim, the Probate Court would have subject jurisdiction over the matter virtue 7-820, Burns’, Repl., §§7-802 filing of specifically authorized which per- liens, on real or either claims that are secured *9 property provide sonal in an estate and also the man- ner in which such disposed claims shall be treated and of; substance, provides, any section said that when by mortgage, the assets estate encumbered pledge lien, personal may or representative other the pay part any thereof, or such encumbrances renew or obligations any extend secured the encumbrance or may convey or such transfer assets to the creditor of his lien in part satisfaction whole or or whether the holder of the encumbrance has claim, appears a if the filed it to be for best interest of the estate. reviewing §4-2910, Repl.,
In Burns’ 1946 Vol. 2, defining jurisdiction County Part the of the Marion Court, Probate we do not find where said Court has jurisdiction over the foreclosure mechanic liens. §43-705, Burns’, Repl.,
We note 8,. Vol. Part 2, providing for a or foreclosure enforcement lien, reads as follows: “Any person having may lien such enforce by filing complaint the same superior his the circidt or county court of the where the real estate property on which lien is so taken situate, any year at time within from the one [1]
time when said notice has for record been received county; or, the recorder of the if a be credit given, expiration credit, from the and if lien shall said not be enforced within the time prescribed by section, be same shall lien null and void. If be foreclosed as herein provided, rendering the court shall made, order sale to officers making property, shall sale sell without appraisement from relief whatever valuation or (Our emphasis) laws.” Therefore, appears foregoing under statute pleading complaint is a if foreclose lien under lien mechanic’s the mechanic’s sta tute, then, course, the Probate Court would jurisdiction subject not have over the matter Legislature specifically the reason that has jurisdiction placed proceedings of such Superior state, Circuit or Courts of this and we fur ther see that no reference made the statute estab lishing probate for fore court closing of mechanic’s liens. providing
The statutes for mechanic’s and en liens *10 derogation law, and, forcement are the of common strictly therefore, any must be and construed bring one who seeks their benefits himself must provisions within et al. the of the Act. Grimm (1958) (T. D.) 1, App. v. Rhoades et 129 149 al. Ind. N. E. 2d 847. construing pleading,
In our court and both the Supreme have held that the character and pleading
nature of determined the is from title, contents rather than from the and is it pleading the substance that is control ling. (1960), State ex rel. Morvilius v. State 241 Ind. 825; Deveny 170 (1947), N. E. 2d v. Treesh 117 App. 578; Ind. Bevington N. E. 2d State ex rel. Myers, Judge (1942), 220 Ind. 41 N. E. 2d v. 358; (1940), v. Johnson Ind. 24 N. E. Loftin 916. 2d
Under required the Probate Code all that is of a against filing claimant estate of a decedent of a succinct definite statement of his claim. There no complaint. need for a formal A legal facts statement as will show a liabil ity part indicating on the per to the respresentative decedent, sonal with reason certainty, upon meet, he able what is called is suf- 435, 436, E., 13, §137, pp. I. L.
ficient. See Vol. In case of secured cited. authorities therein in the action now before claims, involved such as is particularly set forth us, lien must lien, given, if of where the a reference claim and supra. See, Burns’, §7-802, record, found. will be us, appellee herein did before In the matter procedure, instead filed the usual but follow such lien of a mechanic’s complaint the foreclosure for as Mechanic’s Lien Statute is evidenced under prayer thereof. complaint herein forth and the set his finding apparent from also It is court construed the matter court be- the trial ordinary of a foreclosure him an mechanic’s fore as a claim. lien, an action on This is evi- than rather court the trial allowed attor- the fact denced provided ney foreclosure of the lien as for the fees supra, Burns’, ap- further by §43-705, is also a decree in rem the court rendered parent when representative personal estate instead the real Repl. §7-813, Burns’, 1953 required by supra, Burns’, provides, 7-813, substance, Sec. in a of such claim decedent’s estate the trial *11 ordinary if in civil cases and conducted as shall be claimant, finding render for the court shall be the the representative against personal the judgment thereon paid to be out of and for costs thereof the amount for If the to administered. the be of estate the assets by upon prop- a the lien upon secured be claim sued shall as- deceased, date and extent erty the the finding judgment. by the fixed certained and herein- and authorities statutes appears from the It in control on real estate a lien a holder cited personal representative the of decedent has in, probate a an alternative to either file claim waiving right court, the of foreclosure of said lien and take his chances on out of the settlement general estate; of the foreclose assets or his lien on provided by the real estate statutes relative as thereto. foregoing construing pleading, In the we believe and designated pleading hold that filed and a the as claim complaint in truth and fact to is foreclose a mechan- ic’s lien. apparent is the
It also to us that trial court so pleading attorney he construed such when allowed lien, provided fees for the enforcement the as law; lien §43-705 of the is mechanic’s and it also apparent further decree court’s when he en- against rem tered real estate.
Thus, foregoing appears from it sections that powers upon probate and over-all confer ample power authority courts state any existing against determine claim where an estate unsecured, due, such claim is or due secured or not contingent certain, joint any or several or other particular character there no and that forms re- filing quired claim an and, seen we have from citations and statutes required out, complaint process herein no set nor representative personal on the issued establish claim an estate. petition a proper
Had or claim been filed in the de- setting pertaining forth facts cedent’s estate same, alleged securing indebtedness and lien court, question but under there no provisions authority conferred have, Code, war- the facts Probate could event ranted, payment (1) approved full and ordered *12 estate; (2) approved
claim out the assets compromising a settlement the claim ordered the agreed paid upon amount out of the assets estate; (3) the claim for trial and tried issues set provided by code for involved manner against finding trial of claims an estate and a for the claimant ordered the found to due amount paid such claimant out of the assets the estate. order, preparation In the of such the court should payment make such of the sure that out as- sets of the estate does the share of the increase distributees entitled to such encumbered assets and fully the lien the real estate released.
Apparently purpose it is the intent and of the code provide way to settle all such secured in a claims simple part manner and as convenient administration of the estate to suits to without resort foreclose such in a civil court liens or other forms litigation. Anyone desiring expensive to take ad- vantage provisions these code follow must procedure provided §§7-818, code. See 7-819 7-820, Burns’, Repl.
By what stated, reason of we have heretofore judgment must be In reversed. view of the conclusion reached, unnecessary alleged it is to discuss other errors.
Judgment reversed with instructions the Marion Probate Court to vacate the en- heretofore cause, appellants’ tered in and to sustain the motion for a new trial.
Myers, J., Ryan, J.,C. concur.
Ax, J., concurs result. Rehearing
On for Petition J . This matter is now us before on the Cooper, petition appellee’s rehearing they in which con- tend, substance, the decision of the court holding erroneous (1) County Marion Pro- *13 bate Court jurisdiction does have the over fore- closure of a mechanic’s lien when an an Executor of action, estate party is made the to such defendant under (Sixth clause) ; §4-2910 also, (2) opinion that the infers that the County Marion Probate Court a is not general civil jurisdiction court of when such court court of jurisdiction record and of pro- as creating vided in the court, and, such, statute such as has over the foreclosure of mechanic’s liens, (3) the decision of the court is er- holding roneous an action to foreclose mechanic’s lien cannot be treated as a claim in an estate, when such could be treated as a claim and the of the trial court corrected in this re- gard. nothing appellee presents for our consideration three, petition forth, item as above set his
rehearing, opinion infer, because our does not or hold, appellee attempts what to contend. misunderstanding
In order there be no up any ambiguity might exist, to clear which we shall specifications. answer first and second apparent by ap-
It is the record before us that pellee special to circumvent statute relat- tried ing foreclosure wherein of mechanic’s liens legislature specifically stated that such matters must brought by bringing- Superior be Court Circuit proceedings against Matracia, Michael P. Ex- Mary Demma, ecutor of the and James L. estate Johnson, contractor, who, the record reveals to be the County Probate Marion Court. relating foreclosure mechan-
The statute to the rights wholly unknown new ic’s creates liens 220
common ex rel. Mar. law. In the recent case of State Comm. v. Mar. S. C. et al. C. Pl. (1956), 607, 235 Ind. 609, 516, Court, discussing 135 Supreme N. E. 2d our rights wholly new remedies unknown to and/or law, common stated: “The prescribed remedies therein are exclusive. case, In such requirements of the statute as remedy had, to the court where asserting and the time and manner rights, mandatory jurisdictional. Great Life, Western etc. Co. v. State ex rel. (1913), Honan N. E. 181 102 Ind. N. E. 103 843; (1936), Slinkard v. Hunter 209 Ind. Gossard v. 475, 479, 560; 199 (1939), N. E. Vawter 581, 585, 416; 215 Ind. Ettinger N. E. 2d v. (1945), 118; Robbins 172, 59 Ind. N. E. 2d Gary ex Taxpayers State perior rel. Assn. v. Lake Su (1947), 478, 493, E. Ind. 76 N. 2d *14 Wever v. Reeves 254; supra; State ex rel. (1951), 164, 169, 268; 229 Ind. 96 N. E. 2d ex State rel.
Mid-West Ins. Co. v. Superior Marion County (1952), 924; 94, 100, 231 106 E. Ind. N. 2d Duffecy (1952), Ballman v. 230 Ind. 102 Wedmore v. State 646; (1954), N. E. 2d 233 Ind. 545, 549, 122 1.” N. E. 2d foregoing applied rule also to the foreclosure of mechanic’s liens.
In
lien,
an action to
foreclose
mechanic’s
legal
property,
equitable,
owners
either
acquire any right,
all
others who
title or
prior
interest
in said real estate
to
time
suit
in,
commenced,
necessary parties
order
for the court
parties
to have
over the real
controversy.
interest
See Krotz v. A. R. Beck
(1905),
Lumber
34
App.
Co.
Ind.
221 and the decedent will and last testament contractor. Code, §7-701,
We under new Probate find Replacement, personal representative Burns’ 1953 property only possession of the real takes §7-123, Re- 1953 title. See also Burns’ may placement. personal representative Such properly to made order determine a defendant be necessary interest, any, party if would not his but interest, shown unless it is averred and necessary personal representative was upon exists, property, said lien which sell said §7-816, pay Burns’ 1953 of said decedent. See debts being equity Replacement. The lien enforceable in against the heirs of decedent. such and, Burns’, supra, §7-123, also the decisions
Under Supreme Court, of our it is the rule title immediately to a real estate vested decedent’s heirs; absolutely in his administrator it; power pres over under the had no whatever possession takes of the real estate. If the ent law he debts, pay un personal insufficient an was estate paid a lien the land which claim was treated as equity enforce a suit of claimant could (1941), Veedersburg Bank State Coats v. the heirs. also, 243; see, 675, 680, Beach Ind. N. E. 2d 167, 169, E. 38 N. (1894), Ind. et al. et al. v. Bell probate commission’s We note that 819. also foregoing section of relating to the comments *15 representative personal Burns’, supra, that a §7-701, property but not to the personal to the title “takes present law”. under the as the same real being a creature of Marion Probate Court granted jurisdiction as only legislature has such creating powers it it and such statute necessarily implied as are to enable to func probate tion as court. reviewing creating County
In Acts Marion Court, Legislature Probate which the passed §16, being we §4-2916, find that Burns’ same Replacement, as follows: Part reads “Said court shall abe court of record and jurisdiction, judgments, decrees, and its proceedings orders and shall have the force same court, and as those of the circuit shall effect and be enforced the same manner.” By provision it was not meant to confer jurisdiction try Marion cases Probate being §4-2910, Act, enumerated in §10 Replacement, 2, reading
Burns’ Part follows: probate court, county “Said within for and organized, original, for which it shall have jurisdiction pertaining exclusive in all matters probate wills, appointment to the guardians, and assignees, executors, administrators trustees, and the administration and set- minors, persons of estates of
tlement of unsound mind, aged, improvident infirm persons, and ha- drunkards, per- bitual and insolvents deceased sons, trusts, assignments, adoptions and of and surviving partnerships, probate all other matters, shall have concurrent following matters: Proceedings partition. First. Applications appointment Second. for corporations
receivers actions stockholders, either creditors or or both. Applications corpus. Third. writs habeas Proceedings probate Fourth. to resist of wills proceedings to contest wills. Complaints Fifth. to contsrue to dis- wills and trusts. solve *16 by executors, Sixth. All actions assignees administrators, guardians, and trus- tees.”
In ex rel. Bradshaw v. Probate Ct. of State case 268, 769, 278, (1947), 225 73 N. E. 2d the late Ind. at question Starr, dissenting opinion Judge on a in a not construing by opinion in excepted the main to relating jurisdiction foregoing to sections two Court, stated: Marion Probate Replace §4-2916, Burns’ 1946 “It true is provides probate ment, 2, court Part pro jurisdiction. But a vision it was not of court upon this court meant confer
jurisdiction try enumerated in said cases not probate meant What was §4-2910. any powers of court all the with court of record when is vested any disposing which matter jurisdiction. Doe the Demise gives on statute (1849), 1 451.” Smith Ind. v. and Others Hain emphasis) (Our discussing probate and their court, courts Our Fidelity v. State & Cas. Co. case jurisdiction, 1934), 485, (T.D. App. 98 Ind. (1933), Anderson ex rel. 497, 184 E. at N. stated: juris- law have no common courts “Probate of their nature, extent, exercise The diction. upon the and breadth depends terms jurisdiction grant. They statutory or the constitutional powers other than those any exercise cannot expressly or are nec- been have
which conferred expressly implied those essarily Their conferred. from by con- to be extended powers implication.” (Our em- unnecessary struction phasis) discussing jurisdiction of Court, Supreme jurisdiction of courts subject trial matter v. Wedmore general, case courts probate (1954), State 233 Ind. at E. 2d N. stated: “When there is a lack of
subject-matter court, jurisdictional in the trial question may any be raised at time final before any decision and in a manner and if not raised party duty sponte our it is saa raise and *17 Ayers Ewing, Judge determine it. ex State rel. v. (1952), 1, 10, 441, 231 Ind. 106 N. E. 2d and cases there cited. “Probate, law, in American is now or term name used to all include matters probate jurisdiction. which Law courts have Black’s Dictionary, .p. 1428, Dictionary Bouvier’s Law Revision, p. 2728; Rawles Third Harri Johnson v. (1891), 575, son Rep. 382; 47 Minn. 28 Am. St. Ingraham 101, see also (1918), v. Baum 136 Ark. 67, 206 S. W. 68. many years
“For it has been the law that: ‘Probate courts are creatures of the law whose justice basic is to in mat- administer relating ju- ters to decedents’ . estates . . The by probate risdiction exercised courts com- monly probate jurisdiction referred to as . . . jurisdiction is, course, Their purely civil primarily in the 21 it is settlement of estates in rem. Courts, 298,300.’ C. J. Secs. S.— “Being a legislature creature of the the St. Joseph jurisdiction only Probate Court has such granted by creating it, statutes and such powers necessarily implied as are to enable toit probate Fidelity Casualty as a court. & function (1933), ex App. Co. v. State rel. Anderson 98 Ind. 485, 497, shaw v. Probate N. E. 916, supra; 184 N. E. State ex rel. Brad (1947), 272, 268, Court 225 Ind. 73 (Our emphasis) 2d 769.” foregoing case, p. 550, In the Supreme at our also stated: legislative “To ascertain the intent we must object sought consider the statute and entire thereby. to be attained The intention of the law- Rogers
maker constitutes law. ex State rel.
225 479, 482, 104 E.N. Davis, Judge (1951), 230 Ind. v. City Kokomo 382; v. Haynes Co. Automobile 2d 758; v. 9, 12, Thorn 114 E. (1917), 186 Ind. N. 943, (1910), 174 N. E. Ind. Silver 161; (1943), 113 Ind. City Lebanon v. Dale E.N. 173, 178, 269.” App. 46 N. E. 2d Replace- §43-705, legislature by Burns’ any unequivocal ment, terms Part states in bring a mechanic’s may to foreclose person action his filing superior complaint or a circuit lien his propei'ty county said real where court is situated. Rhoades et al. v. court in of Grimm
This the case et 1, 7, 149 N. E. 2d (1958), (T. D.), App. al. 129 Ind.
stated: state “. . . law of this the mechanic’s lien origin. statutory rights providing purely new creates The en lien and its for the statutes derogation common law are in
forcement anyone strictly who and must be seeks construed bring himself within benefit must their Corp. Engineering provisions. their Puritan v. *18 141; (1934), 58, 191 Robinson, 207 Ind. N. E. Tr. (1943), 672, 46 E. 220 N. 2d Ind. Watson Strohl v. 604; Shipman (1934), 99 Shipman Exr. Gdn. v. 445, 192 App. N. E. 849.” Ind. find the of law We rule well stated City Wayne Bishop (1950), case of Ft. 228 Ind. v. 544, 304, 311, 92 N. E. 2d as follows: at legislature right pre “Where creates a whereby right may en scribes method statutory remedy provided ex forced the so 435, Lang (1825), 1 405, v. Scott Blckf. 12 clusive. 257; Ryan Ray (1886), al. Am. et v. et al. Dec. 214; City 101, 106, 4 N. E. Wilmont v. 105 Ind. 538, (1943), 543, 221 48 N. E. 2d Bend Ind. South 649; Ettinger (1945), 223 59 v. Robbins Ind. 118; (1947), 225 Hinkle v. Howard Ind. N. E. 2d 675; York, 176, 178, Chicago E. 2d New 73 N. 226 Company Zumbaugh and St. Louis Railroad v. (1895), App. 272, 279, 1058; 12 39 Ind. N. E. (1922),
Board App. 296, 300, 301, v. Dale Comrs. al. v. Adler et 77 Ind. 602; City 133 Lebanon N. E. (1943), App. 173, 176, Ind. N. E. 2d 269.” See also State ex rel. Mar. C. Pl. C, al., supra. Comm. Mar. et v. S. cited,
From we the authorities have heretofore apparent, opinion, in our the Marion Probate particular Court did in this not have cause proceedings merely its matter erroneous, were, respects, in all void. but petition rehearing is denied.
Ax, J., Myers, J., Ryan, J., concur. C. Reported Rehearing 455. N. E. 2d de- 1.78
Note. — E.
nied N. 2d 253.
Rife etc. v. Karns. 19,402. Filed March [No. 1962.]