Rickman v. Stanton

32 Iowa 134 | Iowa | 1871

Cole, J.

The only provisions of our statute relative to proceedings before the county court for the discoveiy of assets and ordering the delivery of same to the executor, are as follows: Rev., § 2366 (1334). The court may summon before it any person suspected of having taken wrongful possession of any of the effects of the deceased, or of having had such effects under his control, and may subject him to an examination under oath, and if, uj>on such examination, it appears to the court that such suspected person has the wrongful possession of any property or effects of deceased, the court shall order such property or effects to be delivered to the executor of the estate. § 2367 (1335). If he disobey such order or summons, or refuse to answer the interrogatories propounded, he maybe committed to the jail of the county until a compliance be yielded.”

This statute does not confer upon the county court genera] jurisdiction for the discovery of assets; nor does it authorize the county court to make or determine an issue upon any evidence offered as to the ownership of property or the indebtedness of any person to the estate. It provides a specific mode for the summary discovery and delivery of the property or effects of a decedent wrongfully held by another. The extent of its jurisdiction, and the manner of its exercise, are specifically and very plainly stated. Within these limits the court may act, and its decisions are binding; but beyond them it may not act, and, if it undertakes to do so, its acts are void, and may be assailed as such, collaterally or otherwise. Smith’s Lead. Cas. (5th ed.) 832, and cases cited, note to Crepps v. Durden et al.; Ham v. Steamboat Hamburg, 2 Iowa, 460.

The statute in this case gives the court jurisdiction to summon the person suspected of having taken wrongful possession, and subject him to an examination under oath, and if, wpon such examination, it appear, etc., he may order, etc. This does not give authority to try and determine the question, as an issue of fact, upon general evidence, whether the person has taken wrongful possession. And, as if to preclude all doubt, the next section provides that if he fails to appear when cited, or appears and refuses to answer, the court may do what ? Try the issue and make an order according to the facts ? By no means; but the court may commit him until he yields a compliance. The plain meaning of the section is, that the court can summon the suspected person to appear, and can examine him on oath and compel him to answer, and can make such order respecting the delivery of the property as the result of the examination may, in the opinion of the court, justify.

As the record itself, as well as the finding of facts, shows that the defendant did not appear, and that the order was made upon the testimony of witnesses in his absence, it was without authority, and is void. Jurisdiction of the defendant’s person, so as to authorize the making of the order, was not acquired by the service of the citation or summons; that simply gave the court authority to compel Ms attendance; but Ms personal appearance and presence in court was requisite to complete the jurisdiction of Ms person. Smyth, Adm’r v. Smyth, 24 Iowa, 491.

Reversed.