Opinion
No 5564.
October 1, 1930.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.
Action to vacate sale. From a judgment dismissing the action, plaintiffs appeal. Affirmed.
F.E. Tydeman, for Appellants.
The petition for the sale does not state facts sufficient to give the court authority to sell the property.
In the case of Kline v. Shoup, 38 Idaho 202, 226 Pac. 729, 733, the court quotes favorably from Ruling Case Law as follows:
11 R. C. L. 322, sec. 374: "Since proceedings by an executor or administrator of an estate of a decedent to sell real estate are adverse to the heirs at law, all parties in interest should be notified, including of course, the heirs and devisees, and unless such notice is given, the Probate Court will not have jurisdiction, and the sale will be void and pass no title to the purchaser."
The court further quotes 24 C. J. 598, as follows:
"If the record shows service which is insufficient and fails to show that the Court found that it had jurisdiction, the presumption is rebutted and it must be held that the Court acted upon insufficient notice."
The sale of the property of an estate is a separate proceeding and the authority of the administratrix to sell the property is based upon the provisions of the statute. Unless the provisions of the statute are followed, the court does not have jurisdiction to sell, and any sales made in violation of the mandatory provision of the statute are void.
"In the recent case of Kline v. Shoup, 35 Idaho 527, 207 P. 584, it was held that the sale of real property of a decedent's estate is a special proceeding in the administration of such estate, and that a failure to give the notice required by the statute is jurisdictional and renders the order of sale and all subsequent proceedings thereunder void as to the interest of persons not served and that the sale may be set aside upon motion in the Probate Court or on appeal from such judgment or by a proper proceeding in equity." ( Swinehart v. Turner, 38 Idaho 602, 224 P. 74.)
The court lacked jurisdiction to make the sale for the reason that the order to show cause failed to give the statutory notice. (C. S., secs. 7618, 7619.)
The requirement that the notice given by publication of the order to show cause must be completed five days before the day of the hearing is mandatory, and the full five days must elapse between the end of the last day on which the order is published and the beginning of the day on which the hearing is to be held. (See Greve v. St. Paul S. T. R. Co., 25 Minn. 327; 26 R. C. L. 736; People v. Clay Tp. Highway Commrs., 38 Mich. 247.)
Merrill Merrill, for Respondent.
While C. S., sec. 7617, prescribes what a petition for sale of real estate should contain, yet the provisions of this section are directory and not mandatory, and a substantial compliance therewith is sufficient. (C. S., sec. 7617; Steele v. Kelley, 32 Okl. 547, 122 P. 934; Richardson v. Butler, 82 Cal. 174, 16 Am. St. 101, 23 Pac. 9; In re Heydenfeldt's Estate, 127 Cal. 456, 59 Pac. 839.)
The order to show cause why an order of sale of real and personal property should not be made need not contain a description of the property sought to be sold. (C. S., secs. 7618, 7763; In re Roach's Estate, 139 Cal. 17, 72 Pac. 393.)
Where there is no fraud alleged and lack of jurisdiction does not appear upon the face of the record, the orders and judgment of a probate court cannot be attacked collaterally. ( Clark v. Rossier, 10 Idaho 348, 3 Ann. Cas. 231, 78 P. 358; Shane v. Peoples, 25 N.D. 188, 141 N.W. 737; Blickensderfer v. Hanna, 231 Mo. 93, 132 S.W. 678.)
Mere irregularities are insufficient upon which to attack the jurisdiction of the court. (Bancroft's Probate Practice, p. 1168; Lake v. Hathaway, 75 Kan. 391, 89 P. 666.)
Following the above rule, it is held that a charge that the administrator failed to give a bond was a mere irregularity, constituting a collateral attack. ( Swinehart v. Turner, 44 Idaho 461, 259 P. 3.)
H.O. Harkness died April 5, 1911, leaving property in Bannock and Oneida counties. His widow, Sarah Harkness, having qualified as administratrix and having found it necessary to sell part of the estate to pay debts, secured an order directing the sale of a certain electric light plant at McCammon, Idaho. At the ensuing sale which was confirmed by the probate court of Bannock county on August 10, 1914, respondent, Utah Power Light Company, became the purchaser. Some fifteen years thereafter appellants, who were minor devisees at the time of the sale, brought an action in the district court of Bannock county to vacate the sale upon alleged defects, invalidities and irregularities in the proceedings in the probate court. A general demurrer to the complaint was sustained, with leave to amend. A general demurrer to the amended complaint was sustained, without leave to amend; and the action was dismissed. From the judgment of dismissal the devisees have appealed.
No charge of fraud or inadequacy of price is alleged in the complaint; and appellants' attack, wholly collateral in its nature ( Clark v. Rossier, 10 Idaho 348, 3 Ann. Cas. 231, 78 P. 358; Daniels v. Isham, 40 Idaho 614, 235 Pac. 902; Larsen v. Larsen, 44 Idaho 211, 256 P. 369; Knowles v. Kasiska, 46 Idaho 379, 268 P. 3), is based solely upon alleged defects in the proceedings, which appellants insist rendered the subsequent sale void.
Judgments and decrees of a court of record can be collaterally attacked only for fraud or lack of jurisdiction, meaning, of course, jurisdiction of the parties, subject matter and the question to be decided. ( Swinehart v. Turner, 38 Idaho 602, 224 P. 74.) In matters purely probate, the probate court of Bannock county is an original court of record; and, unless it appears from the face of the record that it acted in some instance without jurisdiction, the presumption of regularity attending decrees and judgments of courts of record generally will operate to sustain its orders. ( Kline v. Shoup, 38 Idaho 202, 226 P. 729.) Appellants contend that in ordering and confirming the sale, the probate court acted without jurisdiction of either the parties or subject matter. That the court had jurisdiction of the question to be decided goes without saying. To support their contention, they urge the following:
"1. The petition for the sale does not state facts sufficient to give the court authority to sell the property.
"2. The court lacked jurisdiction to make the sale for the reason that the order failed to give the statutory notice.
"3. The order of sale did not conform to the statutory requirements.
"4. Proper notice of sale was not given.
"5. The court did not have jurisdiction of the plaintiffs herein."
It is charged that in violation of C. S., sec. 7617, the petition failed to set forth (a) whether the property was separate or community property, (b) the names and ages of the legatees and devisees or the heirs of the decedent so far as known to petitioner, (c) a description of all the real property of which decedent died seised, (d) a statement of the condition and value of the respective portions and lots thereof, and (e) what part of the property is real property and which is personal.
A careful reading of the petition attached to the complaint as an exhibit discloses the incorporation therein by reference of numerous instruments filed in former proceedings affecting the administration, in some of which at least it was required to set out the very information appellants contend for. The complaint contains no allegation that these incorporated instruments failed in anywise to conform to the statute: the presumption is that they were in all respects regular and met the court's approval. However, it would seem from the concluding provisions of said section that the omissions complained of are not jurisdictional. Vide:
" . . . . but a failure to set forth facts hereinbefore enumerated will not invalidate the subsequent proceedings if the defect be supplied by the proofs at the hearing and the general facts, showing that such sale is necessary, or that such sale is for the advantage, benefit and best interests of the estate, and those interested therein, be stated in the decree."
The order of sale recited that the court "heard and examined the proofs and allegations of the said petition and on such hearing after a full examination 'it appeared to the satisfaction of the Court' that it is necessary that said electric light plant, including all the franchises, accessories and other properties incidental thereto of the said estate, be sold in order that the proceeds may be applied to the payment of the debts, etc." In view of this recital and the absence of anything to the contrary appearing in the record, it will be presumed that the proofs supplied satisfied the statute.
It is charged that the order to show cause failed to give the statutory notice in this: (a) the last publication was not made five days before the day set for the hearing; (b) the order did not contain a description of the property to be sold nor reference to any former petition, order or notice where the same could be found; (c) the order did not state whether the property was personal or real; (d) the order was directed to be published in the "Semi-Weekly Tribune": it was published in the "Semi-Weekly"; (e) the order was not published in all the issues of any newspaper between the first and last publications thereof; (f) proof of publication was not mailed or filed until after the hearing on April 25th, a violation of C. S., sec. 7620, which directs the proof of publication must be made at the time of the hearing, and (g) the affidavit of publication was not made by the printer or his principal clerk nor does it specify the time and issues in which said publication was made.
From the record, it affirmatively appears that the first publication of the order was on March 25th and the last on April 22d. The return day was April 25th. C. S., sec. 7619, requires that the order must be published "at least four successive weeks." This does not mean for a full term consisting of four successive weeks, but simply that there shall be a publication each week of a consecutive four. ( Forsman v. Bright, 8 Idaho 467, 69 P. 473; Harpold v. Doyle, 16 Idaho 671, 102 P. 158; Calvert v. Calvert, 15 Colo. 390, 24 P. 1043; Smith v. Collis, 42 Mont. 350, Ann. Cas. 1912A, 1158, 112 P. 1070.) The record shows that April 22d was on Wednesday, and that the paper was published on Wednesdays and Saturdays of each week. The affidavit of publication recites that the order was published for four consecutive weeks, the first having been March 25th and the last April 22d. Computing backward from April 22d, it is, therefore, evident that the publication of April 18th was the last possible publication for the fourth week giving more than five days before the hearing. The court specifically found the publication sufficient; and, there being nothing in the record to the contrary, all the presumptions are with him.
The criticism that the order to show cause did not contain a description of the property to be sold is without merit. The statute does not require it. Furthermore, the order recited the former filing of a petition wherein was declared the necessity of selling "a certain electric light plant and franchises, accessories and other property incidental thereto belonging to the estate of the said deceased."
Similar disposition can be made of the objection that the order failed to state whether the property was real or personal. To the objection that the order was published in the "Semi-Weekly" and not in the "Semi-Weekly Tribune" may be opposed the recital in the affidavit of publication, viz.:
" . . . . deposes and says he is the Chief Clerk of the Tribune Co., Ltd., publisher of the Pocatello Tribune and the Semi-Weekly Pocatello Tribune, newspapers published in Pocatello, . . . ., that the publication, a true copy of which is hereto attached, was published in the Semi-Weekly, etc."
It does not affirmatively appear from the record that publication of the order was not made in all the issues of any paper between the first and last publications. Both the presumption and the court's finding of proper publication must prevail.
It affirmatively appears that the affidavit of publication was not executed until April 28th, three days after the hearing. The affidavit would not have been the only competent proof the probate judge may have had before him. He may have relied upon sworn testimony or the papers containing the notices themselves. His order of sale made on April 25th, three days before the execution of the affidavit aforesaid, recites the court's satisfaction of the proof of "due publication": again, the presumption of regularity. There is no merit in the contention that the affidavit should have been signed by the "principal" clerk: it was signed by the "chief" clerk: and what is a "chief" but a principal actor or agent?
Complaint is made that the order of sale did not conform to C. S., sec. 7610, in that (a) the order did not provide for the sale of personal property at public auction, and (b) the order did not require the administratrix to give an additional bond. C. S., sec. 7610, authorizes the probate court to direct a private sale of personal property for "good reason shown." Here, the court found that it was "for the best interests of said estate and all persons interested therein that said property should be sold at public or private sale as the administratrix shall judge to be most beneficial to said estate." The property consisting of an electric light plant included among its franchises, water stock, accessories, incidentals and other equipment, many items that considered alone would be strictly personal property. As combined and operated with the major property, undisputed realty, they became a part of the whole unit; and any separation of them from the main plant would not only have rendered a sale impracticable, but resulted in grievous loss to the estate. The failure to require an additional bond of the administratrix cannot be taken advantage of on collateral attack. ( Swinehart v. Turner, 44 Idaho 461, 466, 259 P. 3.)
It is further contended that the notice of sale was defective, since (a), the sale was not held within six months after the first publication of notice, (b) no posted notice of the sale of personal property was given, (c) the notice was posted by the administratrix, (d) the affidavit of publication was not made by the printer or principal clerk of the "Pocatello Semi-Weekly Tribune," (e) the notice of sale was not published in all of the issues between the first and last publications, (f) the property was sold under an order entered November 17, 1913, and (g) the real property was sold before all of the personal property was sold.
The objections set out in subdivisions b, d and g have already been disposed of: the record flatly controverts subdivision e. As to subdivisions a and f, the record shows that, while the order of April 25, 1914, was in fact supplemental to the order of November 17, 1913, it was based upon a later petition expressly reciting that the plant could not be sold under the former order by reason of inapt description, necessitating a second order. The consequent notice of sale, dated May 11, 1914, announced that the sale would be made in pursuance of an order made April 25, 1914; and the petition for confirmation recites that the sale was made under such order. There is no merit in the contention that the notice of sale was posted by the administratrix: the court ordered the notice posted: it was posted: that's that.
Finally, it is contended that the probate court did not have jurisdiction of the appellants, all of whom were minors at the time of the sale. This court backed by abundant authority has heretofore held that probate proceedings are in their nature quasi in rem. ( Swinehart v. Turner, supra.) It is, therefore, obvious that, unless some statutory requirement for notice intervenes, no notice to parties interested is necessary. C. S., sec. 7619, however, provides that in a proceeding for the sale of property belonging to a decedent's estate the order to show cause must be personally served "on all persons interested in the estate, and on any general guardian of any minor devisee, or heir of the decedent, resident in the county, . . . . or must be published etc. (Italics ours.) This provision is all-inclusive, and is in no manner affected or superseded by C. S., secs. 7769 and 7773, cited by counsel. Those sections direct an additional procedure in specific instances not obtaining here.
To recapitulate: There is no charge of fraud in the complaint. No jurisdictional defect is apparent in the record; and any errors, if errors there be, were but irregularities which have been cured by the order of confirmation. That the sale resulted in a substantial benefit to the estate is not disputed. Nor is there anywhere a suggested absence of bona fides. Equity would be fairly running amuck to upset, in the face of the record, a concluded transaction which has quietly slumbered so long a time.
Judgment affirmed; costs to respondent.
Givens, C.J., and Budge, Varian and McNaughton, JJ., concur.
Petition for rehearing denied.