Demma v. Forbes Lumber Co.

• Decision Date: 23 March 1962
• Docket Number: No. 1,No. 19506,19506,1
• Citation: 133 Ind.App. 204,181 N.E.2d 253
• Parties: Mary DEMMA, Michael P. Matracia, as Executor of the Estate of Mary Demma, James L. Johnson, Appellants, v. FORBES LUMBER COMPANY (an Indiana Corporation), Appellee
• Court: Indiana Appellate Court

Page 253

181 N.E.2d 253

133 Ind.App. 204

Mary DEMMA, Michael P. Matracia, as Executor of the Estate of Mary Demma, James L. Johnson, Appellants, v. FORBES LUMBER COMPANY (an Indiana Corporation), Appellee.

No. 19506.

Appellate Court of Indiana, Division No. 1.

March 23, 1962.

Richard L. Lowther, Indianapolis, Curtis W. Roll, Kokomo, for appellants.

Thomas F. Gibson, Jr., Indianapolis, for appellee.

COOPER, Judge.

This matter is now before us on the appellee's petition for rehearing in which they contend, in substance, that the decision of the court is erroneous in holding (1) that the Marion County Probate Court does not have jurisdiction over the foreclosure of a mechanic's lien when an Executor of an estate is made the party defendant to such action under § 4-2910 (Sixth clause); also, (2) that the opinion infers that the Marion County Probate Court is not a civil court of general jurisdiction when such court is a court of record and of general jurisdiction as provided in the statute creating such court, and, as such, has jurisdiction over the foreclosure of mechanic's liens, and (3) that the decision of the court is erroneous in holding that an action to foreclose a mechanic's lien cannot be treated as a claim in an estate, when such could be treated as a claim and the judgment of the trial court corrected in this regard.

The appellee presents nothing for our consideration in item three, as above set forth, in his petition for rehearing, because our opinion does not infer, or hold, what the appellee attempts to contend.

In order that there be no misunderstanding and to clear up any ambiguity which might exist, we shall answer the first and second specifications.

It is apparent by the record before us that the appellee tried to circumvent the special statute relating to the foreclosure of mechanic's liens wherein the legislature specifically stated that such matters must be brought in the Superior or Circuit Court by bringing said proceedings against Michael P. Matracia, as Executor of the estate of Mary Demma, and James L. Johnson, who, the record reveals to be the contractor, in the Marion County Probate Court.

The statute relating to the foreclosure of mechanic's liens creates new rights wholly unknown to the common law. In the recent case of State ex rel. Marion County Plan Comm. v. Marion Superior Court et al. (1956) 235 Ind. 607, 609, 135 N.E.2d 516, 517, our Supreme Court, in discussing new rights and/or remedies wholly unknown to the common law, stated:

'The remedies therein prescribed are exclusive. In such case, the requirements of the statute as to the court where the remedy is to be had, and the time and manner of asserting the rights, are mandatory and jurisdictional. Great Western Life, etc. Co. v. State ex rel. Ronan, 1913, 181 Ind. 28, 33, 102 N.E. 849, 103 N.E. 843; Slinkard v. Hunter, 1936, 209 Ind. 475, 479, 199 N.E. 560; Gossard v. Vawter 1939, 215 Ind. 581, 585, 21 N.E.2d 416; Ettinger v. Robbins, 1945, 223 Ind. 168, 172, 59 N.E.2d 118; State ex rel. Gary Taxpayers' Assn. v. Lake Superior Court, 1947, 225 Ind. 478, 493, 76 N.E.2d 254, supra; State ex rel. Wever v. Reeves, 1951, 229 Ind. 164, 169, 96 N.E.2d 268; State ex rel. Mid-West Ins. Co. v. Superior Court of Marion County, 1952, 231 Ind. 94, 100, 106 N.E.2d 924; Bailman v. Duffecy, 1952, 230 Ind. 220, 228, 102 N.E.2d 646; Wedmore v. State, 1954, 233 Ind. 545, 549, 122 N.E.2d 1.'

The foregoing rule also applies to the foreclosure of mechanic's liens.

In an action to foreclose a mechanic's lien, the owners of the property, either legal or equitable, and all others who acquire any right, title or interest in said real estate prior to the time suit is commenced, are necessary parties in order for the court to have jurisdiction over the real parties in interest of the controversy. See Krotz v. A. R. Beck Lumber Co. (1905) 34 Ind.App. 577, 73 N.E. 273. As we have pointed out, for some reason unknown to us, and we are sure the same applied to the trial court, the only party defendant in this cause is the Executor of the last will and testament of the decedent and the contractor.

We find under the new Probate Code, § 7-701, Burns', 1953 Replacement, the personal representative takes only possession of the real property and not title. See also § 7-123, Burns', 1953 Replacement. Such personal representative may properly be made a defendant in order to determine his interest, if any, but would not be a necessary party in interest, unless it is averred and shown that it was necessary for said personal representative to sell said property, upon which said lien exists, to pay the debts of said decedent. See § 7-816, Burns', 1953 Replacement. The lien being enforceable in equity against the heirs of such decedent.

Under § 7-123, Burns', supra, and, also the decisions of our Supreme Court, it is the general rule that title to a decedent's real estate vested immediately and absolutely in his heirs; the administrator had no power whatever over it; under the present law he takes possession of the real estate. If the personal estate was insufficient to pay debts, an unpaid claim was treated as a lien upon the land which the claimant could enforce in a suit of equity against the heirs. Coats v. Veedersburg State Bank (1941) 219 Ind. 675, 680, 38 N.E.2d 243; see, also, Beach et al. v. Bell et al. (1894) 139 Ind. 167, 169, 38 N.E. 819. We also note that in the probate commission's comments relating to the foregoing section of § 7-701, Burns', supra, that a personal representative 'takes title to the personal property but not to the real estate, the same as under the present law'.

The Marion Probate Court being a creature of the legislature has only such jurisdiction as is granted it by the statute creating it and such powers as are necessarily implied to enable it to function as a probate court.

In reviewing the Acts creating the Marion County Probate Court, which the Legislature passed in 1907, we find that § 16, the same being § 4-2916, Burns', 1946 Replacement, Part 2, reads as follows:

'Said court shall be a court of record and of general jurisdiction, and its judgments, decrees, orders and proceedings shall have the same force and effect as those of the circuit court, and shall be enforced in the same manner.'

By this provision it was not meant to confer upon the Marion Probate Court jurisdiction to try cases not enumerated in § 10 of the Act, being § 4-2910, Burns', 1946 Replacement, Part 2, reading as follows:

'Said probate court, within and for the county for which it is organized, shall have original, exclusive jurisdiction in all matters pertaining to the probate of wills, the appointment of guardians, assignees, executors, administrators and trustees, and to the administration and settlement of estates of minors, persons of unsound mind, aged, infirm and improvident persons, habitual drunkards, insolvents and deceased persons, and of trusts, assignments, adoptions and surviving partnerships, and all other probate matters, and shall have concurrent jurisdiction in the following matters:

'First. Proceedings in partition.

'Second. Applications for the appointment of receivers and actions against corporations by either creditors or stockholders, or both.

'Third. Applications for writs of habeas corpus.

'Fourth. Proceedings to resist probate of wills and proceedings to contest wills.

'Fifth. Complaints to construe wills and to dissolve trusts.

'Sixth. All actions by and against executors, administrators, guardians, assignees and trustees.'

In the case of State ex rel. Bradshaw v. Probate Ct. (1947) 225 Ind. 268, at 278, 73 N.E.2d 769, at 773, the late Judge Starr, in a dissenting opinion on a question not excepted to by the main opinion in construing the two foregoing sections relating to jurisdiction of the Marion Probate Court, stated:

'It is true that § 4-2916, Burns' 1946 Repl., Part 2, provides that the probate court is a court of general jurisdiction. But by this provision it was not meant to confer upon this court jurisdiction to try cases not enumerated in said § 4-2910. What was meant is that the probate court is vested with all the powers of any court of record when disposing of any matter of which the statute gives it jurisdiction. Doe on the Demise of Hain and Others v. Smith, 1849, 1 Ind. 451.' (Our emphasis)

Our court, in discussing probate courts and their jurisdiction, in the case of Fidelity & Cas. Co. of New York v. State ex rel. Anderson (1933) (T.D.1934) 98 Ind.App. 485, at 497, 184 N.E. 916, at 921, stated:

'Probate courts have no common-law jurisdiction; the nature, extent, and exercise of their jurisdiction depends upon the terms and breadth of the constitutional or statutory grant. They cannot exercise any powers other than those which have been expressly conferred, or are necessarily implied from those expressly conferred. Their powers are not to be extended by construction or unnecessary implication.' (Our emphasis)

The Supreme Court, in discussing jurisdiction of the subject matter in trial courts and jurisdiction of probate courts in general, in the case of Wedmore v. State (1954) 233 Ind. 345, at 549, 122 N.E.2d 1, at 3, stated:

'When there is a lack of jurisdiction of the subject-matter in the trial court, the jurisdictional question may be raised at any time before final decision and in any manner and if not raised by a party it is our duty sua sponte to raise and determine it. State ex rel. Ayer v. Ewing, Judge, 1952, 231 Ind. 1, 10, 106 N.E.2d 441, and cases there cited.

'Probate, in American law, is now a general name or term used to include all matters of which probate courts have jurisdiction. Black's Law...