93 P. 362 | Or. | 1908
Lead Opinion
delivered the opinion of the court.
Plaintiff brings this suit in equity to reform the deed of an administrator', made upon the sale of real estate in a probate proceeding. A demurrer to the complaint was overruled, and a decree rendered for the relief asked, and defendant appeals.
The complaint, after alleging the issuance of letters of administration to F. M. Templeton, and the application of the proceeds of the sale of all personal property to the payment of expenses of the administration and debts of the estate, and reciting the filing of the petition for the sale of the real estate and the necessity therefor, alleges the order for the sale of the realty in the following language, viz.:
“That thereafter, on the 25th day of February, 1895, such proceedings were had in said county court, that the said F. M. Templeton, as the administrator of the estate of said decedent, was duly and regularly authorized and empowered, by an order of said court, which was duly*189 entered, to sell all of the real estate of said decedent, including the said E. % of S. W. %< of section 33, township 8 S., range 25 E. W. M., properly describing it, the court finding that it was necessary to sell the said real estate of decedent in order to pay the remaining expenses, funeral charges, and claims still due and unpaid against the said estate.”
The principal contention of the defendant is that the county court did not have jurisdiction of the parties, and that before it can acquire jurisdiction there must be personal service upon the heirs in the manner provided by law. But the question arises here whether the complaint in this suit sufficiently alleges the decree of the county court. The county court, in exercising the jurisdiction pertaining to probate matters, is a superior court of general jurisdiction.
“In a judgment rendered by a court of general and superior jurisdiction, however, every fact necessary to confer jurisdiction will be presumed in order to support the validity of the judgment. * * The county court in probate matters is a court of general and superior jurisdiction, * * and as it is unnecessary to allege a fact which the law will presume, * * the plaintiff was not required to allege that said court had secured jurisdiction of the person and subject-matter, so that the complaint is not vulnerable to the objection that it does not state facts sufficient to constitute a cause of action, notwithstanding it failed to allege that the order removing the administrator was ‘duly’ given or made.”
This ruling is sustained by all the authorities: 11 Ency. Pl. & Pr. 1130; Black, Judgments, § 966. The
These matters being uncontroverted, this is sufficient to entitle plaintiff to the relief claimed, and the decree of the lower court is affirmed. Affirmed.
Rehearing
Decided March 17, 1908.
On Petition for Rehearing.
[94 Pac. 504.]
delivered the opinion of the court.
Petition denied. Affirmed.