Estate of Newland, Matter of, 57890

• Decision Date: 05 December 1986
• Docket Number: No. 57890,57890
• Citation: 730 P.2d 351,240 Kan. 249
• Parties: In the Matter of the ESTATE OF Lester C. NEWLAND, deceased.
• Court: Kansas Supreme Court

Page 351

730 P.2d 351

240 Kan. 249

In the Matter of the ESTATE OF Lester C. NEWLAND, deceased.

No. 57890.

Supreme Court of Kansas.

Dec. 5, 1986.

Syllabus by the Court

1. K.S.A. 59-2213 provides that in Chapter 59 cases the court shall have control of its orders, judgments, and decrees for thirty days after the rendition thereof. Thereafter, such orders, judgments, and decrees may be modified as provided by K.S.A. 60-260(b).

2. The use of K.S.A. 60-260(b) to attack a judgment is a direct attack. An attack on a judgment is direct where the proceeding in which it is made is brought for the purpose of impeaching or overturning the judgment, while a collateral attack is where an action is brought for a purpose other than overturning the judgment even though the judgment's overturning may be incidentally necessary for success of the action. 46 Am.Jur.2d, Judgments § 631.

3. Failure to file a final accounting, though improper, does not deprive the court of jurisdiction to order final settlement of an estate.

4. K.S.A. 59-2702 is construed to apply to the probating of estates of missing persons where waste is occurring.

5. K.S.A. 59-1508 is construed to be an optional remedy available to the court where property is assigned to a missing heir.

6. The question of whether an administrator used due diligence pertains to the adequacy of notice to heirs.

7. A determination of death and heirship is a question of fact upon which proof shall be offered from which the court shall make a finding.

8. Seven years' unexplained absence or disappearance of a person who has been unheard of by those who would be likely to do so, together with a proper showing of diligent but fruitless inquiry concerning the missing person, gives rise to a presumption of death.

9. The presumption of death is a rebuttable presumption which may be asserted after proper foundation and presents a question of fact.

10. K.S.A. 60-260(b)(1) does not afford relief for mistakes of law.

11. A judgment erroneous on its face entered in violation of law may be set aside under K.S.A. 60-260(b)(6) under appropriate circumstances.

Thomas R. Oglevie, Goodland, argued the cause and was on the brief for petitioner/appellant Charles Lester Newland, Jr.

Jerry D. Fairbanks, Fairbanks & Rigor, P.A., of Goodland, argued the cause and was on the brief for administrator/appellee First Nat. Bank of Goodland.

HERD, Justice:

This is an action by the appellant, Charles Lester Newland, Jr., (Charles Newland), to set aside the journal entry of final settlement in the estate of his father, Lester Charles Newland (Lester Newland), deceased.

Lester Newland died intestate on November 8, 1982, a resident of Wallace County, Kansas. Some forty years before, on September 19, 1942, he married Mildred Florence Herbert in Pepperell, Massachusetts. As a result of this marriage a son, Lester Charles Newland, Jr., was born on January 17, 1944. The son, who is the appellant in this action, later used the name "Charles Lester Newland, Jr." Not long after his son's birth, Lester Newland displayed signs of violence and his wife feared for the life of herself and her son; consequently, Mildred left her husband when the son was approximately nine months old. Lester and Mildred were divorced in July of 1945. From that time on, Lester Newland did not see his son again.

Approximately twenty years before his death, Lester Newland was adjudicated an incapacitated person and his father was appointed as his conservator. After the father's death, Lester's mother became his conservator. Following her death, Jesse Linder, a local attorney, was appointed as conservator. Linder served in this capacity until Newland's death.

At the time of his death, Lester Newland was survived by his son and one brother and four sisters. The brother and sisters had never met the son and had little knowledge of his whereabouts. Upon the death of Lester Newland, Clifford A. Newland, decedent's brother, filed a petition to probate the estate, stating that the decedent's only known heir was his son whose whereabouts were unknown and praying that he (Clifford Newland) be appointed administrator of his brother's estate. The decedent's four sisters then filed an answer, requesting the appointment of an independent administrator. On January 10, 1983, District Magistrate Judge Logan Dobbs ruled in favor of the objecting heirs and appointed the First National Bank in Goodland as administrator. In its order, the court also found:

"To this date due diligence has been exercised in the search for names, ages, relationships, and residence and addresses of heirs. Additional information will have to be obtained with respect to a child named Lester Charles Newland, Jr."

On March 2, 1983, the Bank filed an inventory and valuation of the estate, showing its total appraised value to be $106,707.95. The estate was made up almost entirely of stocks, bonds, and savings.

The Bank, as administrator, took a number of steps to locate the decedent's son, none of which proved successful. Ultimately, the Bank petitioned the court for final settlement alleging Lester Charles Newland, Jr., was the only child of the decedent and stating a diligent search for him had been made, but he could not be found. The petition further alleged the brother and sisters of the decedent were his only heirs.

The magistrate judge entered a Journal Entry of Final Settlement on March 19, 1984, assigning and distributing the estate to the brother and sisters of the decedent.

Approximately two months after the journal entry was filed, the decedent's son appeared. Jesse Linder, as attorney for the son, filed a petition seeking to reopen the estate. Mr. Linder was later replaced by Thomas Oglevie as counsel for the appellant. Ultimately, the matter was submitted to the district court, by agreement of counsel, on briefs, with the exception of an evidentiary hearing on the identity of Charles Lester Newland, Jr. At that hearing, which took place on August 6, 1984, the district judge found the petitioner, Charles Lester Newland, Jr., to be the son of Lester Charles Newland, Sr.

After examining the briefs and record, the district court ruled in favor of the administrator and against the petitioner. The Court of Appeals affirmed in an unpublished per curiam decision. --- Kan.App. ---, 717 P.2d 1078. We granted review.

Additional facts will be considered and discussed where relevant.

Prior to considering the numerous allegations of error raised by the appellant, we first note the basis upon which the district court judgment is attacked.

K.S.A. 59-2213 provides that the court shall have control of its orders, judgments, and decrees for thirty days after the rendition thereof. Thereafter, such orders, judgments, and decrees may be modified as provided by K.S.A. 60-260(b) of the Code of Civil Procedure.

Since the appellant did not challenge the district court's judgment until after more than thirty days had gone by, he now relies on K.S.A. 60-260(b). That statute provides:

"On motion and upon such terms as are just, the court may relieve a party or said party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in K.S.A. 60-309 or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in this article or by an independent action."

In seeking to overturn the judgment, appellant relies primarily upon sections (1), (4), and (6) of K.S.A. 60-260(b). Before considering the application of these sections to the present case, we first consider the appellee's contention that a final judgment in a probate case, if not appealed from, is not subject to collateral attack, except for fraud. Cessna v. Carroll, 178 Kan. 650, 657, 290 P.2d 803 (1955). Middendorf v. Kansas Power & Light Co., 166 Kan. 610, Syl. p 2, 203 P.2d 156 (1949). Appellee suggests that the motion of appellant is a collateral attack and since there were no allegations of fraud, the motion must fail.

We do not disagree with the general rule regarding collateral attacks set forth by the appellee. Rather, we hold that the attack made upon the judgment by the appellant in this case is a direct attack, rather than a collateral attack. The distinction between direct and collateral attacks is simply stated at 46 Am.Jur.2d, Judgments § 631, p. 790:

"The distinction between a direct and collateral attack upon a judgment is sometimes based upon the purpose of the proceeding or action in which the attack is made. Under this distinction, an attack is regarded as direct where the proceeding in which it is made is brought for...