Casey v. Stewart

• Decision Date: 09 December 1882
• Parties: CASEY AND OTHERS v. STEWART, ADM'R, AND OTHERS.
• Court: Iowa Supreme Court

60 Iowa 160

14 N.W. 225

CASEY AND OTHERS

v.STEWART, ADM'R, AND OTHERS.

Supreme Court of Iowa.

Filed December 9, 1882.

This is an original proceeding in the supreme court. The plaintiffs are the heirs at law and devisees of John B. Casey, who died in the state of Kentucky. The defendant Stewart was appointed administrator of said estate in Iowa. The plaintiffs ask a writ of certiorari, and one was issued on the grounds the circuit court of Linn county exceeded its jurisdiction, and otherwise acted illegally in ordering and approving the sale of certain real estate in this state on the application of the administrator aforesaid. John B. Casey made and executed a will which was probated in the state of Kentucky. The plaintiff James B. Casey was appointed executor in the will, and he qualified as such in Kentucky. He caused the will to be probated in Linn county, Iowa, but failed to qualify as executor. John B. Casey died, owning real estate in Linn and Scott counties in Iowa. Upon the petition of the Covington City National Bank, who claimed John B. Casey died indebted to it, the said Stewart was appointed administrator of said estate, and duly qualified as such. On the petition of the administrator the circuit court ordered the real estate belonging to the estate to be sold to pay debts that had been duly allowed.J. B. Young, for plaintiff.

W. K. White, for defendant.

SEEVERS, C. J.

In the petition asking the writ several objections are suggested, which it is claimed render the proceedings in the circuit court invalid, which are not argued by counsel. They will be disregarded. It is, of course, conceded, if the circuit court had jurisdiction, that mere error will not render the proceedings void. It is not, and cannot be, successfully claimed that the circuit court did not have jurisdiction of the subject-matter; that is, the appointment of an administrator and the sale of the lands to pay debts against the estate which had been duly allowed. The only objection urged by counsel is that the circuit court did not obtain jurisdiction of the plaintiffs, because no sufficient notice of the application to sell the real estate was served on them. The statute provides: “The court shall be always open for the transaction of probate business, but the hearing of any matter requiring notice shall be had only in term time, or at such time and place as the judge may appoint.” Code, § 2313. “When the judge fixes a time and place of hearing, as contemplated in the preceding section, he shall determine what notice shall be given thereof, and no such hearing shall be had until proof is made of the giving of such notice.” Code, § 2314. The petition to sell real estate was duly filed, and the judge ordered that it be heard at a specified time at the Grand Hotel in Cedar Rapids. The order directed that notice of the hearing should be served on the plaintiffs by publication for two weeks in a newspaper. A notice which is full, and in all respects sufficient, was published for the required time, and proof thereof duly made and filed.

1. The point made by counsel, if we understand him, is that what shall constitute constructive notice is an act of sovereignty which can only be determined by the general assembly. This will be conceded. It...