13 Colo. App. 295 | Colo. Ct. App. | 1899
Mrs. Smith initiated this litigation in the county court of Arapahoe county. The original defendant was Benkelman, who was administrator of the estate of Minor C. Smith, the plaintiff’s former husband. Various proceedings were had in that court, and Edna May Smith who intervened claimed to have some relation to decedent and to be thereby entitled to some interest in Ms estate. There was a trial, a judgment and an appeal to the district court wherein an amended complaint was filed. The suit was continued against Benkelman as administrator. The intervenor was still a party and by both a general demurrer was mterposed to the complaint on which the cause was heard and judgment rendered against the plaintiff who prosecutes error.
The suit is in many respects peculiar and somewhat novel. Whether in any event, and under any circumstances such an action could be maintained and relief of the kind prayed
Whether a bill asking only for a decree that the plaintiff be declared the heir could ever be maintained as against an administrator alone is exceedingly doubtful. We have been referred to no cases, nor with the examination which we have made of the question have we been able to discover any principle which will sustain such a bill. In the first place it may be well doubted whether the title of the administrator to the personal assets of a decedent is such as to make him the only indispensable party to a bill filed to obtain such a decree. It is quite correct to say wheri speaking of the property of decedents, that the personal estate descends to the administrator and the real estate to the heir. Both expressions are sufficiently accurate for the general purposes for which they are used; at the same time neither is strictly correct where the title to personal estate is by the death transmitted to the personal representative, whether he be such by appointment
The title only exists for purposes connected with the administration. Under our statute of wills, chapter 95, General Statutes of 1883, the administrator is charged with the general duty of winding up the affairs of the estate, selling the personal property if it be necessary to pay debts or for the purposes of distribution. After the debts are paid the administrator must then under the order of the county court, which is the court of probate in this state, distribute among the heirs what remains in his hands. For this purpose there are provisions for a final accounting to which all the parties interested are cited to appear, and wherein claimants may assert rights and therein an order may be made for a distribution of the estate among those entitled. It may well be doubted whether a person claiming an interest as against the administrator can otherwise than by becoming a party to these proceedings in the county court call on him to pay over any part or portion of the estate, and can otherwise than in that tribunal obtain a hearing and an adjudication of those rights as against the representative alone. Whether this be or be not true to its full extent, it is certain that no suit can be maintained against the administrator by an heir to obtain any part of the personal estate without other averments than those contained in this petition. It is undoubtedly essential, if such a bill will ever lie, to show that an estate has come into the possession of the administrator consisting of personal property. It must appear that the estate is in condition for distribution. A demand must be alleged and proven, and there must be adequate averments to show property in the possession of the administrator to which, all other allegations being sustained, the plaintiff will be entitled. None of these things
We are equally well satisfied, though this question was not perhaps raised by the demurrer, that there was a fatal defect of parties. This might not be available to the administrator or to the inter venor as a defense since they failed to suggest it. We only refer to it because the bill is so radically bad as to be assailable on general demurrer, and we refer to this as another of its fundamental defects. There can be no decree, as we look at it, declaring the plaintiff the heir, unless the bill also seeks relief with respect to property real or personal left by the decedent. If the decree was intended, as it doubtless was, to affect the decedent’s estate and to give the plaintiff rights therein, it was indispensable not only to describe it, but to bring before the court all the parties who under the statute might be entitled to share in its distribution. The administrator and the heirs or claimants, whoever they might be, must necessarily be brought in. If the plaintiff had succeeded in obtaining a judgment that she was the heir, it would only bind the administrator, it would not have bound anybody else. Therein it must have been decided who was the only heir.
We concur in the contention of the defendants in error that this complaint seeks in a collateral way to assail the judgment of divorce. We are quite well satisfied no action will lie against an administrator to set aside a decree between parties where one of the parties to the suit is dead, and the
In the first place, as already suggested, we doubt whether this be anything but a collateral attack on a judgment theretofore entered by a court of competent jurisdiction. Had there been no service of notice, or the equivalent process in anywise served, doubtless there would have been no judgment, and the plaintiff might then have proceeded as the heir to maintain and assert her rights. It seems, however, to be very generally conceded that wherever there is a process or a notice, and the only contention respects its sufficiency
Whether there are exceptions to this general rule we do not determine, nor do we put the case principally on this proposition, since as we look at the record there is another which is indisputable and can be maintained by a long line of authorities in our own state as well as others.
The judgment was not void because of the alleged defect in the summons. The only defect averred was a failure to state the time within which the defendant should answer. The complaint does not state what time was allotted by the terms of the writ, though the arguments of counsel would seem to indicate that the time allotted Avas twenty days in place of thirty. It has time and again been held that such defects in a summons are unavailable, unless, in this state at least, there be a special appearance and motion to quash because of the failure to comply Avith the statute. There might have been a grave question respecting the validity of the judgment had there been a service of a summons of this description and no appearance. Whether a judgment thus rendered without appearance either general or special, or a motion to quash would have been sufficient to sustain the judgment, we need not inquire. In the present case the plaintiff avers the summons and complaint was sensed on her. She likewise sets up that she accepted the service and waived the time to appear, answer or demur. It has been many times held in analogous cases that defects of this description are not available for the purposes of an attack on a judgment where the notice or process was in itself insufficient if the parties appeared and did not attempt to take advantage of the proceedings. Such defects are not sufficient to support a subsequent suit attacking the judgment. Isaacs v. Price, 2 Dill. 347;
We cannot discover any difference in principle in actions affecting property and those instituted to obtain a divorce. The public is not interested in divorce proceedings or concerned in their results. 2 Bishop on Marriage and Divorce, § 706.'
We are equally well satisfied that under these authorities, as well as those in our own state, the defect may be treated as waived. At best it is questionable whether if there had been an actual service by an officer of this process, it would have been so far void as to deprive the court of jurisdiction, and whether the defendant could after receiving it stand by and let the judgment go, and thereafter file a bill to attack it. Our statute respecting irregularities of this description is very broad, and very few technical defects and omissions are available for such attacks. This question has been recently considered by the court in two cases. Rich v. Collins, 12 Colo. App. 511; Schlacks v. Johnson, ante, p. 130. In any event, whether the principle of those cases is or is not applicable, it is well settled under the authorities already cited, as well as Butler v. Rockwell, 17 Colo. 290, The Glass-Pendery M. Co. v. Meyer M. Co., 7 Colo. 51, and Burkhardt v. Haycox, 19 Colo. 339, that a party may be concluded by the principle of waiver from subsequently contesting the judgment on the basis of those irregularities where the attacking party has taken no steps within a reasonable time to protect his rights. We are quite of the opinion the acceptance of service as set up in the complaint and the direct waiver of time to demur and answer was a legal waiver of the alleged irregularity in the summons whereon the decree of divorce rested.
We are equally of the opinion the complaint is not aided by the averments attacking the ground of divorce alleged in the original suit. This was wholly foreign to the present action, and whether the suit for divorce was or was not well based, is net a matter for our present determination. Since
Affirmed.