Irwin v. Scriber

18 Cal. 499 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

The only question presented in this case is, whether it can be collaterally shown against the grant of administration upon an estate made by the Probate Court of one county, that the Court had no jurisdiction, by showing that deceased had not her last place of residence in that county.

We. think it cannot. By the Act of March 27th, 1858, (Stat. 1858, 95) it is provided that the proceedings of Courts of Probate within the jurisdiction conferred on them by the laws shall be construed in the same manner and with like intendments as proceedings of Courts of general jurisdiction, and the records, orders, judgments and decrees of the said Probate Courts shall have accorded to them like force and effect and legal presumptions as the records, orders, judgments and decrees of the District Courts.

It is scarcely disputable that a judgment of the District Court could not be collaterally impeached by showing that the party really was not in the county or served with process; or that a judgment of the United States District Court could be assailed collaterally by proof that the plaintiff was not really a resident of a different State from that of. the suit, or not an alien, etc. The same presumptions in favor of the jurisdiction now attach in favor of the Probate Court, as obtain in either of the Courts mentioned. Independently of the statute, it is, to say the least, extremely questionable whether this sort of collateral attack is admissible, although some countenance is given to it by the case of Beckett v. Selover (7 Cal. 215). The danger of such a doctrine is forcibly illustrated by Mr. Justice Roosevelt, in Monell v. Dennison (17 How. P. 426). He says: “ Where the jurisdiction of a subordinate tribunal, having cognizance of the general -subject, has attached by the presentation of a verified prima facie case, and by the appearance-of the parties, its decision, even on a quasi jurisdictional fact, such.as that of inhabitancy, must be conclusive, unless reversed on appeal. To allow it to be called in question collaterally, and on every occasion and during-all time, would be destructive of all confidence. No business in particular depending on letters testamentary or of administration could be safely transacted. Payments made to an executor or administrator, even after judgment, would be no protection. Even if the debtor litigated the precise point, and compelled the executor to establish it by proof, the adjudication would avail him nothing should a subsequent administrator, as in this case, spring up, and after the lapse of a fifth of a century, demand payment a second time, when a scintilla of evidence on one side remained and all on the other had perished. A large number of titles, too, depend for their validity on decrees of foreclosure, and these decrees are often made in suits instituted by executors, or administrators, or their assigns. Must these, too, be subject to be overhauled at any period, however remote, on the nice question of residence ?—a question often difficult to decide where the facts are clear, and much more so, of course, where the facts are obscured by lapse of time and loss of documents and witnesses. The doctrine contended for by plaintiff, and indispensable to his success, is, I think, altogether too dangerous for judicial sanction.” (See also, Atlkins v. Kernan, 20 Wend. 246 ; Estate of Martin E. Cook, 14 Cal. 130; Warner and Buckley v. Wilson, 4 Id. 310.) The precise question here has been often decided in Vermont. (See 13 Vt. 71; 15 Id. 344 ; 27 Id. 581; 28 Id. 667 ; Brown v. Gibson, 1 Nott & McCord, 326, and notes.) Andrews v. Avery (14 Gratt. 236) is a strong case. The case was very fully argued, all the authorities having been cited which were relied on in the case of Beckett v. Selover, and the case seems to have been maturely considered by the Court. The Court say: “ It is now well settled that the County Court is a Court of general jurisdiction in regard to probates and the grant of administrations; that it has jurisdiction in regard to the whole subject matter; and that though it may err in taking jurisdiction of a particular case, yet the order is generally not void, but only voidable on citation or appeal, and cannot be questioned in any collateral proceeding. (Fisher v. Bassett, 9 Leigh, 119; Burnley v. Duke, 2 Rob. 102; Schultz v. Schultz, 10 Gratt. 358; Cox v. Thomas, Adm’x, 11 Id. 323; Hutcheson v. Priddy, 12 Id. 85.)

* * * “ The subject matter being within the jurisdiction of the Court, to wit: the appointment of a personal representative to a decedent who is without one, the Court making the appointment will be considered as having adjudged the question of jurisdiction in the particular case; and the order will not be void. Whether the Court had jurisdiction in the particular case or not may depend upon a variety of facts; as, whether the decedent resided in the county whose Court made the order; or had land there; or died there; or had estate of any kind there. If, after passing upon these facts, and taking cognizance of the case, the order of the Court could at any period, in any collateral proceeding, be avoided by evidence that the decedent did not reside, or die, or leave estate in the Commonwealth, all the inconvenience and other evils would be produced which are referred to in Fisher v. Bassett, and other cases before cited, and which are designed to be prevented by the principles laid down in these cases.”

Judge Tucker, in Fisher v. Bassett, (9 Leigh, 131) says: “ I do not consider a County or Hustings Court, in relation to the grant of administration, as standing on the same footing with the ordinary in England. The County Court is a Court of record, and its judgments or sentences cannot be questioned, collaterally, in other actions, provided it has jurisdiction of the cause. (6 Bac. Abr., Sheriff, M. 2, 166; 3 Wils. 345.) And this is to be understood as having reference to jurisdiction over the subject natter; for though it may be that the facts do not give jurisdiction over the particular case, yet if the jurisdiction extends over that class of cases, the judgment cannot be questioned; for then the question of jurisdiction enters into and becomes an essential part of the judgment of the Court. Thus, if a County Court were to give judgment of death against a white man, the Sheriff would have no lawful authority to execute him; or, if a Court of Chancery were to grant probate of a will, it would be ipso facto void, since that Court has no jurisdiction in any case of probates. It is held void ipso facto, because no inquiry is necessary to ascertain its invalidity. But where the Court has jurisdiction of cases ejusdem generis, its judgment, in any case, is not merely void, because its invalidity cannot appear without an inquiry into the facts; an inquiry which the Court itself must be presumed to have made, and which will not, therefore, be permitted to be revived collaterally. Thus, in Prigg v. Adams, (2 Salk. 674) in an action for false imprisonment, the officer justified a ca. sa. on a judgment in the Court of Common Pleas, upon a verdict for five shillings, for a cause of action arising in Bristol; the plaintiff replied an Act of Parliament erecting a Court in Bristol, and declaring that if any person brought any such action in any Court at Westminster, and it appearing upon trial to be under forty shillings,, no judgment should be entered upon it, and if entered, it should be void; yet the Court held it only voidable, and sustained the plea.” Several other cases in Virginia point the same way. The case of Burdett v. Silsbee (15 Texas, 615) is in remarkable analogy in the facts to this case, and is entitled to the more weight from the similarity of the statutes of that State and ours in probate matters. Wheeler, J. in delivering the opinion, said: “ It is insisted that the Probate Court of Bastrop county had not authority to grant administration on the estate of Silsbee in the first instance; because, it is said, he. did not have residence in that county at the time of his death. The evidence was conflicting as to the residence of the deceased. The witnesses for the plaintiffs testified that he had a fixed residence in Matagorda county; and the witnesses for the defense, on the other hand, testified that his residence at the time of his death was in Bastrop county. His permanent residence, doubtless, had been in the former county until shortly before his death. Whether he had effected a change of residence may be a matter of some doubt. However, it was competent for .the Court at Bastrop to decide the question upon the petition for the grant of administration; and its decision is conclusive until reversed. It cannot be drawn in question in a collateral action. It conferred authority upon the administrator to act in the matter of the administration, until his power expired or was revoked by competent authority. And the Probate Court of Matagorda county had not authority to revoke it; nor could its subsequent grant of administration to another have that effect.” (See also, Lunson v. Crutchfield, 2 Eng. 48, to the same effect.)

It seems to be admitted by Mr. Justice Burnett, in Beckett v. Selover, that the authorities cited by the respondent in that case— among them Grignon's Lessees v. Astor (2 How. U. S. 338) and Leonard v. Leonard (14 Pick. 283)—sustain the general proposition, “ that the fact of residence is a. jurisdictional fact in pais, and the Court necessarily passes upon and adjudicates such facts, and its decision, right or wrong, is conclusive in a collateral proceeding.” It would seem, upon prniciple, that it should be so, for it is difficult to see why, if a fact upon which the jurisdiction rests be in parol— as inhabitancy and the like—the Court, passing upon the whole record and not restricted to any special finding, should not be held by the judgment to have passed upon this jurisdictional matter, and,, passing upon it for all collateral purposes, be held to have settled it, as much as the main and more important matters of the litigation. Some one must decide these questions, and we. do not perceive why the Probate Court should not as well decide them as any other jurisdiction. The shifting character of our population, and the difficult and embarrassing questions as .to residence, etc., furnish a strong reason for holding the rule as held in Virginia, Vermont, and other States, while the general importance of preserving titles from parol contestation adds weight to the other consideration already weighed in favor of the rule.

Judgment reversed and cause remanded.