First National Bank, of Indianapolis, No. 2,556 v. Hanna
| Decision Date | 13 March 1895 |
| Docket Number | 1,588 |
| Citation | 39 N.E. 1054,12 Ind.App. 240 |
| Parties | THE FIRST NATIONAL BANK, OF INDIANAPOLIS, NO. 2,556, v. HANNA, ADMINISTRATOR, ET AL |
| Court | Indiana Appellate Court |
From the Hendricks Circuit Court.
Judgment affirmed.
R. N Lamb and R. Hill, for appellant.
F Kneffler and J. S. Berryhill, for appellees.
This appeal was taken from the rulings of the court below upon certain exceptions to the final report of the appellee as administrator of the estate of John Hanna, deceased.
The facts underlying the case are as follows:
John Hanna, the appellee's decedent, died October 24, 1882 intestate, leaving the appellee, Emma Hanna, his widow, and ten children surviving him. The appellee Wilbur A. Hanna, on the 8th day of November, 1882, was appointed administrator of the estate of said intestate, and, on the 26th day of December, 1883, filed his petition in the Hendricks Circuit Court to sell real estate to pay decedent's debts.
In the petition the administrator averred that Hanna died the owner in fee simple of certain real estate therein particularly described in parcels, to wit:
No. 1. Certain real estate in Putnam county.
No. 2. Also in Putnam county.
No. 3. Lot No. 45 in Young's subdivision to Indianapolis.
No. 4. Lot No. 46 in Young's subdivision to Indianapolis.
No. 5. Part of lot No. 13 in Coburn's subdivision to Indianapolis.
No. 6. Lots 3 and 4 and an undivided one-fourth of lots 5 and 6 in the Commissioners' subdivision, etc., to Indianapolis.
No. 7. One hundred and seventy-six acres in Hendricks county, described in record.
No. 8. One hundred and seventy-four acres in Hendricks county, also described.
In the decree of sale it was provided how the proceeds thereof should be applied by the administrator, with which order the latter complied.
Having sold all the real estate and applied the proceeds as directed, the administrator filed his final report and asked to be discharged. To this report the appellant filed six exceptions and subsequently added a seventh.
The first exception attacks the decree in the proceeding to sell real estate and claims that it was erroneous because it provided that the widow should take one-fifth interest in the entire estate as against all but mortgagees.
To this exception the court sustained a demurrer, and this ruling is assigned as error.
The attack made by this exception is upon the decree to sell real estate, or rather upon that portion of it which awards the one-fifth of the proceeds to the widow. If the appellant was a party to such decree, or to the proceedings in which it was made, and had legal notice thereof, so as to be barred by it, it can not attack the decree thus collaterally. The appellant's counsel recognize this dilemma, and seek to escape it by an attempt to show that the court had no jurisdiction such as to make the decree binding upon the appellant.
The averment as to jurisdiction is: "That neither the said Alexander B. Conduitt, the president, nor any other officer of said First National Bank of Indianapolis, was served with notice of the pendency of said petition, or ever appeared thereto."
And again it is averred as follows: "To which [proceeding to sell real estate] the First National Bank of Indianapolis, No. 55, the then holder of said claims, was not a party, and did not appear and answer, and was not notified by summons or otherwise, and to which neither of said banks appeared and filed answer."
It is not material how erroneous the decree to sell real estate may have been, if the court had jurisdiction of the subject-matter and the parties, it can not be assailed collaterally. That the court had jurisdiction of the subject-matter is not denied. It being a court of general jurisdiction, it will also be presumed that it had jurisdiction of the person of appellant, and this presumption will hold good until it is overcome by some showing to the contrary. The court will be presumed to have done its duty, and this includes the presumption that all parties affected by said judgment and decree were properly before it, and were duly served with process.
Where it appears, on the face of the record, that the court had jurisdiction, the judgment can not be impeached collaterally. Lantz v. Maffett, 102 Ind. 23, 26 N.E. 195; Indianapolis, etc., R. W. Co. v. Harmless, 124 Ind. 25, 24 N.E. 369; Cassady v. Miller, 106 Ind. 69, 5 N.E. 713.
If it does not so appear, this fact should be pleaded.
It is not sufficient, in such case, in order to overcome the presumption in favor of the jurisdiction of the court, to aver that the party seeking to escape its consequences had no legal notice of the pendency of the action in which it was rendered, but such party must allege what, if anything, is shown by the record in relation to the issue and service of process therein. Cassady v. Miller, supra; Indianapolis, etc., R. W. Co. v. Harmless, supra; Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471, 35 N.E. 280.
The reason for the rule just announced is that the record in such matters is conclusive. Were the judgment itself pleaded, and did it show upon its face that the party seeking to avoid it had been served with legal notice, an averment that no such notice had in fact been served, would not be sufficient to overcome the recital of notice in the record. And when the record of the judgment is not set forth in the pleading, as it is not in the exception under consideration, every presumption as to what it contains will be indulged in its favor until the contrary is made to appear by direct averment.
It was said by the court in Cassady v. Miller, supra: "It is nowhere alleged in appellants' complaint that the record of such judgment does not show that she" (Melissa Cassady)
In Krug v. Davis, 85 Ind. 309, the court said: "It necessarily follows that besides, or instead of, denying the fact of service, the complaint should have alleged that there was not in fact, and the record of the judgment did not show, a return of service of summons upon the judgment defendant."
We are therefore of opinion that the exception before us is not sufficient to overcome the presumption in favor of the validity of the judgment it seeks to escape, and that the court correctly sustained the demurrer to it.
The court also sustained a demurrer to the second exception, and this ruling is assigned as error. This exception seeks to prevent the approval of the report upon the ground that the administrator did not apply the rents of the real estate to the payment of the debts of the estate. It avers that parcel No. 1, 18.53 acres, adjoining the town of Greencastle, was of the rental value of $ 10 per month; parcel No. 2, 4 acres in Greencastle, was of the value of $ 20 per month; parcel No. 3, being lot No. 45, in Young's subdivision to Indianapolis, was of the rental value of $ 20 per month; parcel No. 4, viz.: Lot No. 46, in Young's subdivision to Indianapolis, was of the rental value of $ 20 a month; parcel No. 7, viz.: A farm of 176 acres in Hendricks county, was of the rental value of $ 800 a year, and parcel No. 8, 124 acres improved land in Hendricks county, Indiana, was of the rental value of $ 300 per year.
The exception demands that the administrator be charged with said rent, for all but the 40 acres reserved to the widow and family.
Appellant's counsel insist that under section 2336, R. S. 1881, "It is the duty of the administrator, as soon as he learns that the personal estate is insufficient to pay debts, to take charge of all the real estate not exempted to the widow and children, and if he can not sell, rent and collect the rents for the benefit of creditors."
We do not think the appellant's position as to collection and application of rents is at all tenable. It is well settled that the administrator has no control over the real estate except in case it becomes necessary to pay debts, in which event he can proceed to sell it only by order of court. The heirs, and not the creditors, are entitled to the rents; and this is so even after a petition to sell the real estate has been filed. The administrator, even if he collects such rents, can not apply them to the payment of debts unless he is acting under the special order of the court in renting the property. Kidwell v. Kidwell, 84 Ind. 224; Hankins, Admr., v. Kimball, 57 Ind. 42.
The court also sustained a demurrer to...
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First Nat. Bank of Indianapolis v. Hanna
......The widow filed a cross petition, making the children and creditors parties defendant. The First National Bank of Indianapolis, No. 2,556, a creditor of the estate, not having been made a party to any of the proceedings, filed exceptions to the ......