*1 44 January April 26, 1972 affirmed allowed
Petition for review of Bill A. In the Matter Wells, the Estate Deceased. Respondents. v. WELLS
WELLS, Petitioner, et al, P2d 718 496 *2 argued Theodore B. Conn, Lakeview, cause petitioner. With him. briefs were & Conn Lynch, Lakeview. Cooper, argued
Forrest F. the cause and Lakeview, respondents. filed the brief for J. TONGUE,
The
this case is
sole issue
whether
refusing
court erred in
aside an
set
discharging the administratrix and exon-
an estate,
Appeals
erating
her
affirmed the
bond. The Court
(1971)).
(7
App 243,
substance, that pending then died while it was a “certain suit” and *3 appeal the then substituted that court; in this appellant as the in that of his estate the administratrix for further action, the case remanded case and later answer and a cross- filed an the defendants which after accounting. complaint an by alleges that “inadvertence” petition also The pending during suit, an order of that counsel, of only discharging administratrix. The was taken according “inadvertence” to explanation for such support filed in that of counsel one-page affidavit was: petition, April 1970, was when “That only my intention that the same it
prepared by accounting then filed said adminis- approve the permitted to continue act she be and tratrix pending litigation complete Case No. and to 7074. order of by the usual dis- inadvertence That charge my was made in office and entered my knowledge.” personal without Court goes petition allege although on to it was the intent of the administratrix continue the other it has since been dismissed lawsuit, prejudice; appeal court with from that dis- pending missal is now in this and that the time court, at filing year elapsed one had not since entry discharg- of the order the estate and ing petition “prays the administratrix. The for an * * * pro correcting order nunc tunc said order * * * merely approving continuing the account position said administratrix her official in order litigation” complete final conclusion the other case. Appeals appealing
In to the Court of from the trial court to “correct” that refusal as he had contended, before the was entitled to such relief he under the court, that following terms of OES 18.160: judgment, decree, order or other “Relief from may,
proceeding. The court in its discretion, and may just, upon at terms as be time such within year party thereof, after notice relieve a one judgment, proceeding decree, order or other through against mistake, him his taken inadver- neglect.” surprise (Emphasis or excusable tence, added) application “this also stated that
Petitioner [OES] under 18.160, is made amend Section adopted probate code, 1969, 116.233,” *4 provides as follows: which Upon “Reopening peti- estate decedent. of person, any court, interested with tion of such may may prescribe, order the as it
notice property reopened discovered, is if other decedent a unperformed necessary or any act remains if for appearing The any proper the court. other cause repre- personal may reappoint the former court sentative, representa- personal appoint or another property or to additional administer tive, to neces- perform as are considered other acts such original sary. provisions adminis- of law as to accomplish applicable, apply, far as tration the so reopened, purpose is but the estate for which may already adjudicated or barred is a claim that reopened administration. in the not be asserted added) (Emphasis 190]” [1969 § c. 591 affirming Appeals, court, The Court referring that: 18.160, to OES held, in “* * * applicability situation to the its instant go beyond liberal seem for it would doubtful, April say the order construction to affirmatively sought appellant herself which 1970, and obtained ex parte from which she now seeks through against him his mistake, was ‘taken relief, * * * neglect.’ or excusable OES inadvertence question, however, decided, need not be This 18.160. applies, assuming arguendo, the statute for, appellant’s the discretion of the is within relief refusing aside a a court. Its action set except for not be reviewed or order will decree * * *” (Emphasis of discretion. abuse manifest added) say holding “we cannot here there
After Appeals discretion,” the Court of abuse a manifest say that: went states, appellant in her brief note that “We [OES] application is made under to amend
‘this Accordingly, 116.233.’ we do not 18.160,not Section applicability of the latter section to consider the of this case.” facts rehearing then filed Petitioner
49 Appeals, in contended that the Court of which it was complaint held in the because this court had that good other case stated cause of action and because a appeal pending case this that was also further to rights parties finally ju- “the of the be court, should diciously petition on for determined the merits.” That rehearing was denied. petition
A
for
in
court,
review
then filed
this
contending
plain-
mistake of
“where,
counsel,
day
tiff has not been
a trial nor ‘had his
accorded
erred in
court,’
court
the exercise of its dis-
refusing
plaintiff
cretion
to
relieve the
from the
judgment
question,” citing
v.
Fretland
Cantrall, 78
(1915),
Savings
Or 439,
In for review this court in- structed its clerk to write to counsel as follows: requests
“The Court that Mr. Conn file a supplemental stating position sup- brief if his is ported by 116.233 and OES also whether the Pro- apart power bate Court had an inherent reopen Anna statute to the estate and continue Wells as administratrix.” responding request, In counsel filed a “* #* question
further brief the inherent right probate settling court to an set aside allowing permit and a final account and to the Ad legal pursue seeking remedies ministratrix the col of assets of estate.” brief lection That cites two Livesley Pioneer Trust 170 Co., v. Or cases, 613, 135 Hughes (1943), Casualty and v. Aetna P2d 777 Co., only (1963). P2d 55 234 383 reference in Or petitioner’s say it is a brief OES 116.233 to “* * * right reopen previously codification of the * * *” “* * * un- closed estates and was enacted doubtedly decision(s)” as the result of of this Livesley Hughes. argument
In oral this court counsel before either 18.160 contended that under OES power or trial court had should 116.233 the closing the estate and have set its aside *6 discharging in order that the ad- the administratrix, litiga- might then be able continue the ministratrix candidly a He tion of the other to final conclusion. case to set aside that order however, his motion admitted, frankly upon also conceded 18.160.He was based OES the it is a matter within that under either statute or to set the court whether not of discretion contending although in order, the aside judge should be reversed for abuse this case of discretion. considering petitions from for review decisions
In by by Appeals, court is the of this bound Court the 2.520(5): following provisions of OES petition Supreme allows for Court a “After the proceedings shall be had as review, further such may by provide. Supreme However, rule Court the review Supreme is limited to those the Court petition rehearing in the asserted errors for Supreme Appeals, unless the Court shall Court plain apparent error on the face of take notice added) (Emphasis record.” supra, Cantrall, Astoria Both Fretland v. supra, upon Savings al, as Normand et relied v. Bank support of her for petitioner review, granted relief was under the terms in which cases were judgments taken 18.160 now OES of what against appellants upon showing in those cases a neg- surprise of “mistake, inadvertence, or excusable by petitioner, lect.” As stated those were cases “by which this court took note of the fact that mistake plaintiff has not been accorded a trial nor ‘had his day in ” did not court.’ those cases involve However, setting parte, by tendered, aside of orders ex party seeking and did not hold that the exist- relief pending ence of another case was of itself sufficient as under that statute. the first Thus, a basis relief question provides decided is whether to be ORS 18.160 petitioner for relief to the in this case. basis suggested, but hold, decided,
We application Appeals, that no Court of ORS 18.160 has because this case estate and discharging the administratrix was not an order taken “against” the as to fall administratrix, so within the contrary, that statute. that order was terms of On request of the administratrix and taken at the her attorney. relief to Thus, this case under the terms 116.233 or must be either ORS power court. under the inherent *7 disagree petitioner’s with not contention doWe may adopted in have been 1969 as 116.233 that ORS Hughes this court in the decisions of and result of the right reopen Livesley of codification the to and as “a may previously The trial estates.” also closed any previous right set aside order, inherent to have the upon showing a sufficient judgment demurrer or surprise inadvertence, or “mistake, excusable either “any proper cause” aside neglect” other from the or 18.160or 116.233.As provisions ORS conceded of either any “right” such is one by petitioner, which however, of the trial subject discretion court. sound the to 52 necessary
It thus becomes to consider all the facts and circumstances of in this case order that we may properly judge or determine whether not trial the abused his discretion in this case. since this Also, requires of a consideration contention made original petition clearly in her and not all) rehearing (if raised at in her for before Appeals, we the Court of must also decide whether judge refusing in set the action of to aside “plain or “correct” its was error.” After careful consideration of entire record in we that the trial court did not case, this hold abuse reopen denying petitioner’s in motion to its discretion any event, in its refusal do that, estate and to so “plain proper make error,” as it not such to such error under this take notice ORS court to 2.520(5). holding impressed are with the fact
In we so closing in which the order not a case that this was discharging properly the administratrix can estate and light entry of as either the same be viewed against or judgment a defendant as an isolated default probate single in a entered case of a instance attorney through who left of an inadvertence probate to cases his preparation of routine orders suggested secretary, counsel this case. appears prior contrary, to it On entry the order close the and preparation discharge and exonerate her administratrix estate, close that addition steps taken were bond step. 12th as the These 12 order, the final (and respondent’s according brief without steps, by petitioner) as follows: were contradiction January dated Account “(1) Final
53 by appellant filed that it is recited date wherein fully probated had her estate. she husband’s (Ab. inclusive). P 19 to Recital is made therein fully probated and estate has been she and attorney paid her in full their services.
“(2) Certificate of release of all income tax by Department claims executed of Revenue (Ab. 26). filed with the P clerk the court. 25 and of “(3) fixing Order time Probate for hear- Court ing (Ab. 28). on Pinal P Account. 27 and “(4) attorney, Affidavit of T. R. Conn, mailing of notice him to each of three heirs, including copy appellant, of a of the Pinal Account, hearing and of notice of thereon to each them and to January (Ab. 29). of them on 15,1970. P “(5) Piling receipt tax inheritance executed Department covering of Revenue the entire February 30). (Ab. estate dated 4,1970. P “(6) publication County Affidavit of of Lake place hearing Examiner of time and of thereon. (Ab. 31). published P This document was four County times notice to the world Lake Examiner and awas including appellant and her attorney going as to what was on. “(7) Copy publication of of affidavit of notice hearing published. (Ab. of Account, Pinal 37). P
“(8) approving ‘Order Pinal Account and ord- ering (Ab. 33). distribution’ dated March 30,1970. P
“(9) receipt my Distributive ‘of all of share of the Estate Bill from Anna Wells, Wells, Louise administratrix of Bill Estate Wells.’ Dated April signed Sherry (Ab. 34). 2, 1970 Wells. P
“(10) receipt my Distributive ‘of all share the Estate of Bill administratrix Wells, Anna Louise Wells, the Estate of Bill Wells.’ Dated signed by April (Ab. 35). 2, 1970 Steven Wells. P “(11) receipt my Distributive ‘of all share of
the Estate of Bill administratrix of from Anna Lonise Wells, Wells, Bill the Estate Wells.’ Dated April signed by (Ab. 1970 Anna 2, Louise Wells. 36). P “(12) copy closing A and of Order dis-
charging appellant surety. April 21, and her Dated (Ab. 37).” P 1970. Respondents then follows: contend as previously
“This like the two that have court, being case, ruled appellant this is now asked find that to attorney legal and her never intended the foregoing consequences and factual steps by reported pro 12 said in the as documents they they bate claim made these con file; twelve secutive mistakes and should be relieved all *# * of them. “Appellant attorney and her in their affidavits question; this have left unanswered did not the attorney appellant they and her know that had * * *” April closed estate on 21, 1970? recognize petitioner’s by We contention that only April intended to 1970, order of she have the 21, accounting discharge approve her and court her as administratrix. order had However, accounting approving already and, entered been entry by respondent, pointed of the order out April was the culmination of twelve 1970, on 21, period steps, over separate months, two over a estate. close this hold neither we that it was facts, these
Under “plain error” nor of discretion abuse reopen judge the estate order that the to decline might pursue the other lawsuit. administratrix decided appeal that case was this first remanding January the case for 1969, 15, on
55
proceedings.
further
See Wells v.
Or
Wells,
Except
(1969).
filing
subsequent
Other considerations same reopen, which lawsuit, result. The would only not claim the administratrix, involves a a but against cross-complaint the administratrix for an closing accounting. of In the course the estate its fully appraised at were $36,339.89, disbursed assets, receipts and were filed from the heirs and distributed acknowledging receipt of all amounts due to them. closing asking order the estate set aside, be In previous of made of the assets no tender back undertaking was no tendered under estate and n whichthe defendants in the might case re- other seek covery, prosecution if successful of their cross- complaint against the administratrix. complaint
Furthermore, since in the other peti January case 1971, had been dismissed 8, closing April tioner’s motion set aside the order of February filed until 18, 1971, which was 21, 1970, sought pro order to a nunc tunc “correct” the April reopen of as to retro 1970, so actively, in order to reinstate the administratrix as to the dismissal of the other case. ‹ prior a date arrangements might some do not hold that
We possibly difficulties. made to surmount these have been all of facts under and however, We do hold, trial court did not abuse this case, circumstances of guilty “plain error” in and was not its discretion previous denying petitioner’s to “correct” its motion discharging ad- the estate ministratrix. dissenting opinion C.J., O’Connell, applicable
recognizes if OK.S 18.160 that even within the discretion still a it is case, such judge set aside such or not whether some facts from then mentions order. The dissent support might have drawn been an inference which complains “inadvertence” conclusion *11 why record the trial from the indication no “there is or whether undue petitioner’s motion” denied grounds for its action. delay of the one was ‹ Respondents expressly pro ORS 1'16.233 that also contend already “a claim reopening consider an oí hibits the reopening barred,” forbids the of this and thus adjudicated or is estate litigation of a suit that was dismissed permit with pending though appeal from that is still order. prejudice, even judges In our while trial view, some however, might have drawn different there were inferences, ample support by facts of record to the denial this trial judge petitioner’s reopen par motion to this estate, ticularly delay many after a of so months. Moreover, reopening only of the estate was not a discretion ary petitioner matter, but was the it burden closing demonstrate that the reason the order estate was the “inadvertence” of his counsel. The credibility testimony by petitioner offered support judge contention was for the trial to determine.
As for the reasons for the decision the trial judge, his letter states that he was not convinced that “any legal reopening there was valid and reason for the estate at this time.” The words “at this time” strongly suggest long delay that the was one of the reasons for the decision the trial court. Moreover, judge required state reasons for holding, in effect, that had failed to proving satisfactory sustain his burden of credible evidence that reason for the order the estate was the “inadvertence” of counsel. When judge matter is a trial decides a committed to the judicial of his discretion, exercise it seldom that the reasons for record will show his decision, even might helpful though appellate such a record be courts. affirm of these reasons we
For all order of judge Appeals. the decision of the Court of dissenting. O’CONNELL, C.J., being construe OK.S 18.160 would I available Although petitioner in this case. the statute is to the judgment, pro- decree, of “a order or in terms written *12 58
ceeding person against seeking taken the relief under very the it seems me be- a narrow con- statute, to to struction to it to the situation where the court’s limit entering judgment, action in the was decree or order at request person. the of third I can think of no reason a legislature prompted would to which have the bar simply person seeking relief because the relief rather person judgment, than a third caused the or decree Moreover, entered. I think that' in the to be contrary, absence a to the trial court of statute the judicial power to the incident its would have function judgment, grant to relief decree where or order of the mistake, was entered a result inadvertence person seeking surprise or of relief. opinion majority if holds that even the court
The grant prayed peti- power relief had grant discretion to or it was within the court’s tioner, showing deny that there relief and there no support In discretion. of was an abuse of opinion entry majority treats the action, the court’s April as “the 1970 culmination of the order steps, period separate months, two over a twelve petitioner appears me that the It estate.” close yet steps the first eleven might taken have well postpone estate intended have litigation pending completed the in Case he had until No. 7074. majority that the trial court holds could also
The reasonably intended the inference draw regard that anas inference I would estate. to close certainly contrary conjecture upon founded expected from one to be who action course normal kept only can pending which be alive lawsuit has open. left if the majority pos- speculates further as to the
sible harm which the other lawsuit defendants might permitting suit to suffer as a result of problem face those defend- continue. The same would *13 petitioner ants if had closed the estate. Whether not undertaking provided adequate in the other could be proceeding disposed inof should be a matter to be proceeding, present case. that in the not given a I the trial court must be realize that leeway upon passing a motion for relief certain in difficulty present in the from action. inadvertent why no indication the record case is there is that petitioner’s Moreover, motion. the trial court denied nothing court had there is indicate that argued denying the motion. It is that reasons for the might judge motion he have denied the because trial prompt petitioner action had taken felt that litigation bringing ato conclusion. the other good may reasons well have been there However, appear delay. from the trial it would And for the denying giving opinion for the reasons letter court’s delay request that was not one petitioner’s relief for action. ‹ grounds for the court’s ‹ opinion as follows: reads letter court’s The trial “Gentlemen: my denying copy the find enclosed “Please Tracy. of Louise on behalf A. Order’ filed to Correct ‘Petition opinion are reasons that there several is of the The court among the that which is fact petition be denied should the argument any petition or oral have nor written neither the any legal valid and reason there is court that the convinced wrong time. If the court is reopening at this the for denying my perhaps the should be then in this any appeal appellate along that other so the appealed with legal might valid or reason there decide whether court for reopening estate. the petitioner guilty delay,
If had been of undue the can dismiss the other action on defendants’ nothing present motion I can see that lawsuit. proceeding grounds deny- which would constitute ing sought by petitioner. relief concurring in
IiOWELL, J., result. I am to concur in the reached constrained result majority agree, I do not however, this ease. pro- majority with the conclusion of the peti- are not visions of ORS 18.160 available to my respect, In this reasons would be the same tioner. expressed C.J., in his dissent. as those O’Connell, agree majority with statement in Neither do I opinion trial court could have inferred that actually accept the estate. I intended close petitioner’s completely the estate statement *14 appear any is to the court that there event it would “In by grant petition power to a court such no inherent entering pro the mistake were that nunc tunc unless an order Any reopening itself, have it wasn’t. would which of the court by authority 116.233 would make of ORS which to done be April 21, reopening as as date and not 1970. a of this such requires court its before the exercised dis- statute That reopening property that other must be the estate cretion probate necessary and discovered or some have been shown to any ‘proper appearing unperformed to or cause act remain having property been claimed to have been No new court.’ remaining unnecessary performed be discovered, act to no being alleged having the court not convinced that been ‘proper reopening, any for such it cause’ a be- other is there deny petition necessary court to such a even for the if came petition reopen a to to be estate rather were construed it asking alleged for a as than corrected. be ending opinion pro- of the court is also the “It barring reopening a claim al- ORS 116.233 vision ready ‘adjudicated may applicable or barred’ well be also in this case. given the various reasons the court event “In denying petition.” was closed as a result of a clerical error. There would absolutely petitioner be no reason for to close the estate litigation while the other was unresolved.
In his motion to aside the order set estate, the relied on OES 18.160 but re quested pro that the order be entered nunc as of tunc the date the estate was closed. As I read the letter opinion judge, of the trial he did not believe he time. ‹ authority pro had to enter such an order nunc agree. I pro entry
“The office of a nunc
tunc
is to make a
previously
record of what was
not
done, but
then
make
entered;
an order now for then,
but
previously
enter now for then an order
made.” Klein v.
(CC
1905).
Co.,
Southern
140 F 213
Or
It is
Pacific
purpose
pro
supply
of a nunc
tunc order to
an
actually
omission in the record of action
taken but
through
omitted from the record
inadvertence or mis-
or
take,
to enter an order which should have been made
legal duty.
as a matter of
course
as a
Cranston v.
(1927).
al,
314, 319,
et
123 Or
In the instant case it was not a ing actually omission the record of action taken making or a record now of action taken previously. requesting Petitioner was the court change purposes, which, an order for all intents and time was a valid at the it was entered court.
‹ The court stated: *15 appear it would “In event court that there no grant power petition by such a inherent enter- ing pro nunc unless an order tunc the mistake were that of * * *” itself, the court which it wasn’t. majority opinion trial court affirms the petitioner has abuse not shown an the reason that the denying judge the motion discretion reluctantly I the estate. to set aside the ground would affirm the but result, the same reach authority to did have enter the trial court original setting pro aside the tunc order nunc closing the estate. opinion. joins in this J.,
McAllister,