Daniels v. Bruce

• Decision Date: 21 June 1911
• Docket Number: No. 21,845.,21,845.
• Parties: DANIELS v. BRUCE et al.
• Court: Indiana Supreme Court

176 Ind. 151

95 N.E. 569

DANIELS

v.BRUCE et al.

No. 21,845.

Supreme Court of Indiana.

June 21, 1911.

Appeal from Circuit Court, Gibson County; O. M. Welborn, Judge.

Proceeding by Kate B. Daniels, administratrix against Abby D. Bruce and others. From an interlocutory order for the sale of real estate to pay debts, the administratrix appeals individually. Affirmed.

See, also, 93 N. E. 675.

Walker & Walker, for appellant. John W. Brady, Lucius C. Embree, Morton C. Embree, and Spencer, Brill & Hatfield, for appellees.

COX, J.

This is an appeal from an interlocutory order for the sale of real estate, made on the petition of appellant as administratrix de bonis non with the will annexed of the estate of William B. Daniels, her deceased husband, to make assets to pay the debts of his estate.

The proceeding was instituted by James Lauer, executor of the deceased, in the Vanderburgh circuit court, in which court the settlement of the estate was pending and which had issued to him his letters of executorship. A change of venue was granted on the motion and affidavit of one of the appellees, and the proceeding sent to the Posey circuit court. Upon the written agreement of the parties, it was from there sent to the Vanderburgh superior court. This latter court not having jurisdiction of the subject-matter, the proceeding was on motion transferred to the Vanderburgh circuit court. While pending in that court, Lauer resigned, and appellant was appointed administratrix de bonis non with the will annexed and substituted as the petitioner. Lauer had obtained a decree of sale, and this she tried to make sale under, and failed for want of service on some heirs and other necessary parties, being restrained from proceeding under that order. She then filed a petition and made such persons parties to the proceeding. And again, on motion and affidavit of another of the appellees, the venue was changed to the Posey circuit court. Subsequent to this the appellant filed in the Posey circuit court another petition, designated an amended petition, and summons was issued to each of the parties defendant thereon on issues formed, and matter proceeded to trial on such petition in that court. Before the completion of the trial, that term of the Posey circuit court ended, and by consent of the parties the case was taken to the Gibson circuit court, and the trial was there finished before the same judge who was presiding judge of both the Posey and Gibson circuit courts, and the order made from which this appeal is prosecuted.

[1] By proper assignments of error, it is first contended by appellant that the Gibson circuit court was without jurisdiction to hear and determine the proceeding. It is urged as the basis of this contention that, as that section of the decedents' act authorizing the filing of a petition by an administrator for the sale of real estate of the decedent requires such petition to be filed in the court in which the estate is pending for settlement, and as no provision is made in that act for a change of venue, the court having original jurisdiction has also exclusive jurisdiction of such a proceeding. And it is insisted that no change of venue in such a proceeding can be taken to, or the jurisdiction conferred upon, a circuit court of another county by agreement or other waiver.

The section of the statute authorizing a petition to sell real estate, in section 111 of the decedents' estates act of 1881, being section 2852, Burns' 1908, provides as follows: “Whenever an executor or administrator shall discover that the personal estate of a decedent is insufficient to satisfy the liabilities thereof, he shall, without delay, file his petition in the circuit court issuing his letters, for the sale of the real estate of the deceased, to make assets for the payment of such liabilities.”

The law governing the same matter, which had long been in force prior to the enactment of the above section, did not specifically provide where the original jurisdiction was lodged, but provided generally that the court having jurisdiction should order the sale. 2 Gavin & Hord, p. 506. There arose some confusion under that statute whether the petition should be filed in the first instance in the court of the county where the land was, or in that in which the estate was pending for settlement. Ex parte Shockley, Guardian (1860) 14 Ind. 413Williamson v. Miles (1865) 25 Ind. 55;Jones v. Levi (1880) 72 Ind. 586.

The first case in this court involving the jurisdiction of such a proceeding under the act of 1881, supra, was Vail, Executor, v. Rinehart (1885) 105 Ind. 6, 4 N. E. 218, in which Howk, J., writing the opinion of the court, said: “Under this section of the statute, it is clear that the circuit court, which issues the letters testamentary or letters of administration upon the estates of a decedent, has exclusive original jurisdiction of a petition for the sale of his decedent's real estate, in whatever county the same may be situate, to make assets for the payment of the liabilities of such decedent's estate.” It is to be noted that the learned judge, adhering to his well-known care in using words to convey an exact meaning, used the words “exclusive original jurisdiction.” We think he used the word “original” as limiting the exclusiveness of the jurisdiction in the institution of the proceeding, and at least leaving open the question whether it might not be subsequently submitted to the jurisdiction of the court of another county having jurisdiction of the general subject-matter of decedents' estates, by change of venue. The question then arises, Is there authority for granting a change of venue in such a proceeding from the county where the exclusive original jurisdiction is lodged?

The identical question seems never to have been decided by this court. That the practice of granting such change of venue has been more or less general throughout the state has become known to this court through the examination of the records of appealed cases. The latest instance of this practice is Ditton v. Hart, Administratrix, 95 N. E. 119, decided this term. Doubtless many land titles throughout the state rest on sales made on orders of the court to which the venue had been changed. The decedents' estates act by its terms neither grants nor withholds the right to a change of venue from the county or a change of judge; it is silent as to this as it is in many other matters of practice necessary in carrying out all of the objects of the statute, except as it is provided in section 121 (Burns' 1908, § 2863) that the hearing in certain particulars shall be conducted “as in other cases.”

It has been held that a drainage proceeding, which is quite as much a special statutory proceeding and sui juris as a proceeding by an administrator to sell real estate, is so far a civil action that the act providing for a change of venue (Burns' 1908, § 422) is applicable to it. Bass v. Elliott (1885) 105 Ind. 517, 5 N. E. 663. And such act is held applicable to a proceeding for the appointment of a guardian for a person of unsound mind Berry v. Berry (1896) 147 Ind. 176, 46 N. E. 470. And in proceedings to contest an election. Weakley v. Wolf (1897) 148 Ind. 208, 47 N. E. 466. And in proceedings supplementary to execution. Burkett v. Bowen (1885) 104 Ind. 184, 3 N. E. 768. And in a proceeding to disbar an attorney. In re Darrow (1910) 92 N. E. 369. See, also, Jaseph v. Schnepper (1890) 1 Ind. App 154, 27 N. E. 305;McConahey's Estate v. Foster (1898) 21 Ind. App. 416, 52 N. E. 619;Goodbub v. Hornung (1890) 127 Ind. 181, 26 N. E. 770.

Furthermore, it is settled that a claim against a decedent's estate is a civil action within the meaning of the above statute relating to a change of venue (Lester v. Lester, Executor [1880] 70 Ind. 201), and that the same statute is applicable to a proceeding by an administrator to sell real estate. Scherer v. Ingerman, Administrator (1886) 110 Ind. 428, 11 N. E. 8, 12 N. E. 304. In the latter case it was said: “In many regards the decedents' act does not provide a complete mode of procedure. That is so in relation to the proceedings by which the administrator may reach real estate for the payment of debts. Where a complete mode of procedure is not thus provided, we must look to the Civil Code, and apply the rules of pleading and practice provided for civil actions. To the extent that such rules of pleading and practice must be applied, the proceeding is a civil action.” It was there held that a party defendant was entitled to a change of judge under the provisions of the Code (section 422, Burns' 1908) which reads in part: That “the court in term, or the judge thereof in vacation, shall change the venue of any civil action upon the application of either party,” etc.

Following the part of section 422 quoted, it gives the causes for which changes of judge or from the county may be had. Since the authority to change the venue from the judge, and that to change the venue from the county, are derived from the same statute, both being conferred by that part of the section above quoted, it would seem that the authority to change from the county exists whenever there is authority to change from the judge. In a proceeding to sell real estate, the title may be litigated, a fraudulent conveyance may be set aside, and many issues may be required to be tried therein of a nature which clearly characterizes them as issues in civil actions. We therefore conclude that, upon a proper and timely application, a change of venue from the county in which the estate is pending for settlement may be taken. If reasons exist making such practice unwise, the Legislature may prohibit it.

[2][3] Moreover, if it should be granted that appellant's contention that there is no authority for a change of venue from the county in such a proceeding is sound, it still does not follow that the Gibson circuit court was devoid of jurisdiction. It is of course true...