Smith v. Whiting, 106 P. 791

106 P. 791 | Or. | 1910

Mr. Justice Slater

delivered the opinion of the court.

1. This is a collateral attack upon the validity of the probate order for the sale of the realty (Morrill v. Morrill, 20 Or. 96: 25 Pac. 362: 11 L. R. A. 155: 23 Am. St. Rep. 95), and the question to be decided is one of jurisdiction of the court making the order. This involves jurisdiction, both of the subject-matter and of the persons interested. If, when such an order is made, jurisdiction has attached, whatever errors or irregularities may occur in the subsequent proceedings, it cannot be questioned collaterally. Such errors or irregularities can be reached only by some direct proceeding before the same court, or in an appellate court; otherwise, the order of sale cannot be regarded as a nullity, and cannot therefore be collaterally impeached.

2. To sustain the defense and render the record admissible the authority of the court to make the order must exist, otherwise it is a nullity, and confers no right or title. Wright v. Edwards, 10 Or. 298. The power of the court to act upon the subject-matter is originated by the filing of a verified petition, containing the material substance of facts required to be set forth by the statute, viz., the amount of sales of personal property, the charges, expenses, and claims still unsatisfied, so far as the same can be ascertained, a description of the real property of the estate, the condition. and probable value of the different portions or lots thereof, and the amount and nature of any liens thereon. Section 1173, B. & C. Comp. The petition on which the proceedings in question are based, although somewhat abbreviated in form, is probably sufficient to confer upon the court jurisdiction of the subject-matter—that is, the land—but it falls, short of the remaining requirements of that section of the statute by failing to give the ages and residences of the respective heirs. These matters, however, seem to be directed more toward, and material for acquiring jurisdiction of the persons of the heirs, of which wé shall speak later.

3. It is contended by defendant that the proceeding is one essentially in rem, that jurisdiction of the persons interested is not essential to the validity thereof, and that the requirements of the statute for issuance and service of citation upon the heirs or devisees are directory, and not mandatory. A contention somewhat analogous to this was made in the early case of Fiske v. Kellogg, 3 Or. 503, where it was held that, as the title to real property is in the heir, the proceedings are hostile to him, and he is therefore a necessary party, and that the probate court must have acquired in the manner provided in the statute jurisdiction of the person, as well as the subject-matter, or the sale will be void. This case was decided under the territorial statute of 1855, and an effort has been made to distinguish the provisions of that statute from those of the statute of 1862, under which the present sale was made. But we are of the opinion that no material change was made in the law by the later enactment, so far as the question under consideration is involved. The whole contention is based exclusively upon the reading of Section 1172, B. & C. Comp., which is a part of the act of 1862, and which apparently bestows upon an administrator an absolute right to sell real property of the decedent, “when the proceeds of the sale of personal property have been exhausted and the charges, expenses and claims specified in Section 1169 have not all been satisfied!” This section must, however, be read in connection with all other sections of that chapter referring to the same matter. Section 1168 declares:

“No sale of the property of an estate is valid unless made by order of the court or judge thereof, as in this title prescribed, unless herein otherwise provided. The application for an order of sale shall be by the petition of the executor or. administrator, and ■ in case of real property, a citation to the heirs and others interested in such property.”

Other sections of the statute require certain facts to be set forth in the petition, including the names, ages, and residences of the devisees and of the heirs, the issuance of citations to them to appear and show cause, if any exist, why an order of sale should not be made as prayed for, and for the service of the citation. Then the statute declares that: “If, upon the hearing, the court find that it is necessary that the real property, or any portion thereof, should be sold, it shall make the order,” etc. When read in its entire scope, the statute plainly inhibits the sale of real property of an estate, except upon an order made after a hearing to which the heirs and devisees have been duly cited to appear in the manner and form required by Sections 1174 and 1175, and when, as the result of such hearing, it has been judicially determined, and a finding made that the proceeds of the sale of personal property have been exhausted and that there are certain'charges, expenses, or claims against the estate unsatisfied, rendering the sale necessary. What was said by this court in Fiske v. Kellogg, 3 Or. 503, upon that point is applicable to the present state of the law. We therefore hold that service of citation upon the heirs and devisees is mandatory, and essential to the validity of the order without which the order and all proceedings based thereon will be void.

4. It is well settled in this State that county courts when exercising the power of ordering the sale of the real property of a decedent to pay debts, are to be deemed courts of general and superior jurisdiction. Bewley v. Graves, 17 Or. 274 (20 Pac. 322) ; Russell v. Lewis, 3 Or. 380; Tustin v. Gaunt, 4 Or. 305; Monastes v. Catlin, 6 Or. 119; Slates’ Estate, 40 Or. 350 (68 Pac. 399). The judgment and orders of such courts cannot therefore be collaterally impeached, except where the want of jurisdiction affirmatively appears upon the face of the record. Murray v. Murray, 6 Or. 24; Slates’ Estate, 40 Or. 349 (68 Pac. 399).

5. The order of sale recites, that the heirs and all interested parties were duly cited to appear, and this must be conclusive, unless contradicted by some other matter appearing upon the record. But it appears from the record that, pursuant to an order of the court, a citation addressed to all the heirs named in the petition was published in five consecutive issues of a newspaper; the first being on July 7, 1900, and the last on August 4, 1900, the latter date being the day named for the hearing. This could not be a legal service upon heirs resident within .the State, for, as to them, the statute requires personal service. Section 1175, B. & C. Comp. The petition does not disclose the “residence” of any of the heirs, but states that the “address” of each of them is at a place within the State, excepting plaintiff J. M. Smith, whose address is given as “Manila, P. I.” The defendant admits that this is not sufficient service to confer jurisdiction of the persons of those resident within the State, but she invokes the presumption of law that personal service was had, which would ordinarily arise from the recital of due service contained in the order. But, when the record discloses a particular method adopted to acquire jurisdiction, if that is not sufficient for the purpose, it will not be presumed that any other method was adopted, unless there is something further in the record on which to base such presumption. Northcut v. Lemery, 8 Or. 316; Heatherly v. Hadley, 4 Or. 1; Tustin v. Gaunt, 4 Or. 305.

6. The recital in the judgment that the heirs were duly cited to appear makes no reference to the form of service, so as to distinguish it from the one disclosed by this record, and it must be read in connection with that part of the record, which gives the official evidence prescribed by the statute. Knapp v. Wallace, 50 Or. 348 (92 Pac. 1054: 126 Am. St. Rep. 742.) However, it is maintained that the record was sufficient, and should have been received as to J. M. Smith, who, it is claimed, was a non-resident, because service of citation upon non-residents, by publication thereof, is expressly permitted by the statute. Section 1175, B. & C. Comp. Although the county court is a court of general jurisdiction, yet it was exercising a special power conferred upon it by statute, and in a manner not according to the common law, when it. invoked the power to serve a notice upon an interested party by publication, instead of by personal service. This is in derogation of the common law, and, as to a non-resident, no presumption of jurisdiction will attend the judgment of the court; but the facts essential to the exercise of that jurisdiction must appear upon the record. Northcut v. Lemery, 8 Or. 316; Knapp v. Wallace, 50 Or. 354 (92 Pac. 1054: 126 Am. St. Rep. 742.)

7. The statute authorizes service by publication upon an heir or devisee unknown or non-resident, and the record should show that the person upon whom such service is attempted to be made is of that class. The statute evidently contemplates that this showing should be made in the petition, for it expressly requires that it contain the “residence of the devisees, if any, and of the heirs.” Sections 1173, 1175, B. & C. Comp. The petition in question gives the address, and not the residence, of each. These are not equivalent terms; for J. M. Smith, whose address was given as “Manila, P. I.,” may, at the same time have had and maintained a residence within this State, while temporarily absent therefrom, and therefore subject to personal or substituted service of a citation in the same manner as of a summons.

8. Moreover, the citation, as published, does not conform to the requirements of the statute, which requires that it command the party to whom it is directed “to appear at a term of court therein mentioned, not less than ten days after service of citation.” It directed appearance to be made on August 4, 1900, the day on which the publication thereof was completed. It is therefore apparent that the time for appearance was less than 10 days after the service, for that was not completed until the day of appearance. We are of the opinion, therefore, that the record was properly rejected.

9. The offer to show by parol testimony the fact of personal service of the citation upon the resident heirs was also properly rejected. Such proof is required to be in writing, made in a particular manner, .and to be of record; that is, in the same form that the return of the service of a summons is required to be made. Section 1175, B. & C. Comp. The offer was not to prove the contents of a return, shown to have been made and filed, and subsequently lost, but as a substitute therefor, and for that purpose it was not competent.

10. Neither do we think that in a collateral attack can the judgment be supported by parol proof that the party to be bound voluntarily appeared, so as to waive personal service of process. As was said in Ferguson v. Ross, 5 Ark. 517: “To constitute such appearance as would authorize the court to proceed to judgment against him without service of process, some act of his indicating clearly a design to dispense with the service of process and voluntarily appear to the action must be shown by the record—as where the party comes and defends or confesses the action, or, without defending, or confessing it, says he has nothing to allege in the premises, or where, by any other affirmative act, he legally binds himself to appear.” In other words, where there has been service on the defendant, the record should show it, and, where there has been no service, the record should show an appearance by the party in order to bind him. Davis v. Whitaker, 38 Ark. 435; 2 Pl. & Pr. 596.

The judgment is therefore affirmed. Affirmed.