Hamilton v. Browder

• Court: Oklahoma Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Hamilton v. Browder, 54 P.2d 1025, 176 Okla. 229, 1936 OK 52 (Okla. 1936)
• Decision Date: 21 January 1936
• Docket Number: 26220.
• Parties: HAMILTON et al. v. BROWDER et al.

54 P.2d 1025

176 Okla. 229, 1936 OK 52

HAMILTON et al. v. BROWDER et al.

No. 26220.

Supreme Court of Oklahoma

January 21, 1936

Rehearing Denied March 3, 1936.

Syllabus by the Court.

1. The question of jurisdiction is primary and fundamental in every case, and must be inquired into and answered by this court both as to its own jurisdiction as well as to the jurisdiction of the court from which the appeal is taken whether raised by any party or not, and may be done sua sponte.

2. A claim against the estate of a decedent can only be established in one of two ways: (1) By being first presented to and allowed by the executor or administrator, and then presented to and approved by the county judge; (2) by judgment thereon in an action against the personal representative in the proper court, after its disallowance by either the executor, administrator, or county judge.

3. In the event a claim filed against the estate of a decedent is disallowed by either the administrator, executor, or county judge, the remedy to establish the rejected claim is not by appeal, but by an independent action and judgment against the personal representative of the estate in a court of competent jurisdiction.

4. Record examined, and found that there is insufficient evidence to sustain the judgment of the district court upon the appeal of the administrator.

Appeal from District Court, Pittsburg County; Harve L. Melton Judge.

Proceedings by A. D. Browder for the allowance of a claim against the estate of Ellen Bynum, deceased, and by Carl W. Manar administrator, to sell real estate, opposed by Maggie Hamilton and others, brothers and sisters and heirs of the decedent. From an order of the district court allowing the claim and granting the petition to sell real estate, on appeal from an order of the county court disallowing the claim and denying the petition, the heirs appeal.

Reversed and remanded, with directions.

Arnote & Arnote, of McAlester, for plaintiffs in error.

Wilkinson & Hudson, of McAlester, for defendants in error.

PER CURIAM.

Ellen Bynum, a resident of Pittsburg county, died on April 7, 1931 leaving as her only heirs her brothers and sisters, A. D. Browder, J. D. Browder, H. L. Browder, Maggie Hamilton, Alice Riley, and Mrs. E. C. Tinney. On September 30, 1931, the county court of Pittsburg county appointed Carl W. Manar administrator of the estate of Ellen Bynum, who left two parcels of real estate in Pittsburg county, but no personal property. On the day the administrator was appointed, A. D. Browder, one of the defendants in error, filed a claim with the administrator in the sum of $2,625 for the care and maintenance of the deceased from October, 1919, to the date of her death. The administrator and the county judge approved the claim for $500. A petition was filed to sell the real estate, and on the day of the hearing of the petition to sell, H. L. Browder, Maggie Hamilton, Alice Riley, and Mrs. E. C. Tinney, four of the heirs of Ellen Bynum, filed a protest against the allowance of the claim of A. D. Browder in the sum of $500, and the sale of the real estate. The county judge proceeded to hear and sustain the protest, disallowing the claim of A. D. Browder in the sum of $500, and dismissing the petition to sell the real estate. From the order of the county court disallowing the claim and denying the petition to sell real estate for the purpose of paying the debts of the estate, Carl W. Manar, the administrator, and the claimant, A. D. Browder, appealed to the district court of Pittsburg county where a trial de novo of the petition to sell the real estate and the objections of the heirs of Ellen Bynum, deceased, to the claim of A. D. Browder took place before the court without a jury. The district court granted the prayer of the petition to sell the real estate, and allowed the claim of A. D. Browder in the sum of $500. The plaintiffs in error, heirs of Ellen Bynum, bring this cause here from the district court.

Both plaintiffs and defendants in error in their briefs argue the sufficiency of the evidence to sustain the district court, and the admission of certain evidence at the trial, but neither of the parties discuss the jurisdiction of the district court of Pittsburg county to entertain this cause in so far as it concerns the claim of A. D. Browder, disallowed by the county court. It has long been the rule in the vast majority of the courts of last resort that jurisdiction may be raised at any time during the consideration of any cause, and this is the sole exception in this court to the rule that a cause must be tried here upon the same theory it was tried in the lower court. That jurisdiction may be inquired into at any time during the course of proceedings was decided in the case of Mansfield, C. & L. M. Railroad Company v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462, where the Supreme Court of the United States held: "This court will, where no motion is made by either party, on its own motion, reverse a judgment for want of jurisdiction, not only in cases where it is shown negatively that jurisdiction does not exist, but even when it does not appear affirmatively that it does exist. * * * The rule, springing from the nature and limits of the judicial power of the United States, is inflexible and without exception, which requires this court, of its own motion, to deny its own jurisdiction and, in the exercise of its appellate power, that of all other courts of the United States, in all cases where such jurisdiction does not affirmatively appear in the record on which, in the exercise of that power, it is called to act. On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested and without respect to the relation of the parties to it."

This court adopted the rule above quoted in its entirety in the case of Myers v. Berry, 3 Okl. 612, 41 P. 580, and has without deviation adhered to that holding. Only a few of the cases need be cited. In Rhyne v. Manchester Assur. Co., 14 Okl. 555, 78 P. 558, this court stated: "An appellate court has not only the power to determine its own jurisdiction, but may also inquire into the jurisdiction of the court from which the appeal is taken."

Billington v. Grayson, 59 Okl. 182, 158 P. 433, 434: "The defendant in error has not filed a brief, or moved to dismiss the appeal, but where, as in the instant case, the want of jurisdiction appears, it must be answered by this court, whether propounded by counsel or not."

Howard v. Arkansaw, 59 Okl. 206, 158 P. 437: "The question of jurisdiction is primary and fundamental in every case, and cannot be waived by the parties or overlooked by the court. It is the bounden duty of the court to examine into its jurisdiction, whether raised by any party or not, and sua sponte to determine its own jurisdiction."

Model Clothing Co. v. First Nat. Bank of Cushing, 61 Okl. 88, 160 P. 450, 451: "In 11 Cyc. 673, the rule is stated as follows: 'Parties cannot by consent or by stipulation invest a court with jurisdiction or power not authorized by law or conferred upon it by the Constitution. This rule applies to jurisdiction of the cause of action or subject-matter, to causes wherein the necessary jurisdictional amount is involved. * * * Citing authorities. See, also, Myers v. Berry, 3 Okl. 612, 41 P. 580, Beach v. Beach, 4 Okl. 359, 46 P. 514, wherein it is expressly held that jurisdiction of the subject-matter cannot be conferred by consent."

Blake, County Treasurer, et al. v. Metz, 136 Okl. 146, 276 P. 762, 764: "In the latter case [referring to Fehr v. Black Pet. Co., 103 Okl. 241, 229 P. 1048], in the body of the opinion, it is said: 'The fundamental question of jurisdiction, first of the appellate court, and then of the court from which the record comes, presents itself on every writ of error or appeal, and must be answered by the court, whether propounded by counsel or not.' In support of this statement, many authorities are cited, including Myers v. Berry, supra. See, also, Twine v. Carey, 2 Okl. 249, 37 P. 1096, wherein it is held: 'Objection to the jurisdiction of the court which goes to the power of the court over the subject matter may be raised at any stage of the proceedings."'

It being, therefore, the duty of this court, to, first of all, inquire into the matter of jurisdiction, not only of this court, but the court from which the record comes, it becomes necessary to determine the jurisdiction of the district court of Pittsburg county to entertain this cause on appeal.

The filing and approval of claims against the estate of a decedent being in the nature of a special proceeding over which only the county court has primary jurisdiction, the particular statutes controlling must be followed to the exclusion of any other method of establishing a claim. So we find in section 1239, O.S.1931, which is identical with section 6344, Revised Laws, 1910, and section 1240, C.O.S.1921: "When a claim is rejected, either by the executor or administrator, or the judge of the county court the holder must bring suit in the proper court, according to its amount, against the executor or administrator, within three months after the...