Seidel v. Chick

130 P. 53 | Or. | 1913

Mr. Justice Burnett

delivered the opinion of the court.

1. The county court was a tribunal of competent original jurisdiction in the matter under consideration. Both the persons and the subject-matter involved were properly within its control by virtue of proceedings already had. It therefore had the power to decide rightly or wrongly in the matter of the confirmation of the sale of the property to Chick for $6,100. Conceding, without deciding, that Chick had a right to appeal from this order of confirmation, he did not exercise this right, but appealed only from the decision of the county court denying his motion. He thus abandoned one of the methods of direct attack upon the order confirming the sale.

2. The only other method of direct attack upon the confirmation was by an original suit based upon some ground of equitable cognizance. So far as the disposal of the property was concerned, the county court had exhausted its power, and was functus officii when it confirmed the sale. Although the mode of proceeding in that court is in the nature of that in a suit in equity as distinguished from an action at law that tribunal has no authority to entertain an original suit in equity, that being an exclusive prerogative of the circuit court, barring exceptions authorizing this court to assume original jurisdiction under Section 3, Article VII, of the Constitution of Oregon. Richardson’s Guardianship, 39 Or. 264 (64 Pac. 390).

3. By Section 1357, L. O. L., guardians are required to proceed in the matter of sales like executors and administrators whose duties in that respect are, in turn, prescribed by Section 1258, L. O. L. This section requires a return to be made within 10 days after the sale, and allows 15 days from the filing of the return for urging objections against the confirmation of the sale. If Chick had a right to object to the sale, his time to do so was within those 15 days. Not having thus appeared in the county court at any time prior to the confirmation of the two reports of sale referred to, he must be deemed to have waived any objections to the sale so far as the county court is concerned. His motion to overturn the confirmation decree came too late in that court and cannot aifect the proceedings.

4. It was tantamount to a motion for a rehearing on the application to confirm the sale, but no provision for motions for new trial is made in the general statutes relating to equitable procedure. Many sections and chapters of the code relating to actions at law are made applicable to suits in equity, yet Chapter 8 of Title II of the Code of Civil Procedure (Sections 173-178, L. O. L.), prescribing the method of obtaining a new trial, is not among them. The situation is that a county court, a tribunal of original jurisdiction, over the persons and subject-matter in question rendered a decree of confirmation which is not assailed by appeal or by an original suit in equity to set it aside. The decree is therefore valid as against all attacks in the procedure before us.

We affirm the decree of the circuit court sustaining the orders of the county court. Affirmed.