19 Kan. 578 | Kan. | 1878
The opinion of the court was delivered by
The question in this case is, as to the validity of an administrator’s sale. Its validity is challenged on two grounds: 1st, the insufficiency of the petition for the sale of the real estate; and 2d, the invalidity of the notice given of the application for order of sale. Passing by the first, we shall notice the second ground of attack. And here it may be remarked, that as these proceedings are attacked collaterally, a want of jurisdiction must be shown, and no mere matters of error are sufficient to invalidate the sale. This is conceded by counsel. Now as to the notice. Section 131 of the administrator’s act of 1859, (Comp. Laws 1862, p. 531,) provides, that “when such petition (that is, the petition for the sale,) and such accounts, lists, and inventories shall be filed, the court shall order that all persons interested in the estate be notified thereof, and unless the contrary be shown on the first day of the next term of the court, an order will be made for the sale,” etc. “Such notice shall be published for six weeks,” etc., “or by ten handbills,” etc., “in the discretion of the probate court.” On the records of the probate court appears this entry:
“In Probate Court of Lyon county, January ltd, 1866, January Term.
“ In the matter of the estate of Zilpha A. Mickel, deceased, Wm. H. Mickel, administrator.
“Now comes said administrator, by Wm. T. Galliher, and files petition asking for an order to sell the. real estate of said deceased to pay the debts of said estate. In consideration whereof, it is ordered, that all persons interested in said estate be notified by publication six weeks in the Emporia News,” etc.; “ that unless the contrary be shown on the first Monday in February of this term of court, an order will be made,” etc.
“Now Comes the said administrator, and the petition for the sale of real estate of deceased to pay debts being for hearing, and no cause being shown why said petition should not be granted, after due notice of the proceedings thereof given by publication,” etc., “ and it appearing to the court that there is not sufficient personal property to pay the debts,” etc., “a sale is ordered.”
So that this notice was ordered by the court on the 2d of January 1866, at the January term, to be published in the Emporia News for six weeks, that unless the contrary appeared on the first Monday of February of the same term of court, the order for sale would be granted, etc. The first Monday of February was the 5th, and the day when the order of sale was made to the administrator, and under which he made this sale. Upon this counsel argue, that the statute required that the notice if published should be for six weeks, if by handbills they should be put up twenty days before the term at which the' petition was to be presented, and it authorized the probate court in its discretion to cause notice to be given in either manner. The probate court exercised that discretion by ordering the publication in the Emporia News for six weeks. Having exercised that discretion, notice could be given only in the manner ordered, and the notice ordered was insufficient for two reasons: 1st, it was an impossibility for notice to be published for six weeks between January 2d and February 5th, less than five weeks of time actually intervening; and 2d, the notice was of an application to be made at the same when it should have been at the next term. (Probate courts then as now held but four regular terms annually, commencing on the first Mondays of January, April, July, and October respectively.) To this it is replied, that very likely there is a mistake in the date of this order of publication — either that the journal entry was made under a wrong heading, or that the order was in fact made several days before it was entered—and the language of the entry is referred to as evidence of this, for it reads, “Now comes said administrator * * * and files petition; ” and the indorse
The question is not free from difficulty, and the members of this court do not agree in their views. The writer of this opinion is inclined to regard with favor the first of the above lines of argument, and to consider the order of sale as beyond successful attack, while the other members of the court yield their assent to the propositions last stated, and hold the
But we are met by the further claim that these proceedings for the sale of the real estate of decedents are proceedings in rem, and that therefore so far as any question of jurisdiction is concerned it is immaterial whether sufficient or indeed any notice was given; that the provision requiring notice is directory, and that no defect therein affects the jurisdiction. Are these proceedings for the sale of the real estate of decedents proceedings in rem? An examination of the authorities discloses a wonderful disagreement. See, among many, the following, holding that they are: Grignon, Lessee, v. Astor, 2 How. U. S. 319; Mohr v. Manierre, 9 Chicago Legal News, 270; Sheldon v. Newton, 3 Ohio St. 494, containing a strong argument by Ranney, J.; Benson v. Ally, 8 Ohio St. 604. And these, the contrary: Gibbs v. Shaw, 17 Wis. 197; Good v. Norley, 28 Iowa, 188, opinion by Beck, J.; Morris v. Hoyle,
For the error above indicated, and without pursuing this discussion further, the judgment of the district court must be reversed, and the case remanded for a new trial.