Harkness v. Hartwick, 5596

• Court: United States State Supreme Court of Idaho
• Writing for the Court: LEE, J.
• Citation: 49 Idaho 794,292 P. 592
• Parties: HENRY O. HARKNESS, JOHN ABNER HARKNESS and THEODORE R. HARKNESS, Appellants, v. W. F. HARTWICK, Respondent
• Docket Number: 5596
• Decision Date: 11 October 1930

292 P. 592

49 Idaho 794

HENRY O. HARKNESS, JOHN ABNER HARKNESS and THEODORE R. HARKNESS, Appellants,
v.
W. F. HARTWICK, Respondent

No. 5596

Supreme Court of Idaho

October 11, 1930

EXECUTORS AND ADMINISTRATORS-SALE ESTATE ASSETS.

1. Administrator's sale of realty will not be set aside to purchaser's prejudice, without allegation and proof that purchaser was party to fraud at sale.

2. In action to vacate administratrix's sale partly because of allegedly fraudulent re-appraisal, allegation that property did not decrease in value in sum shown by appraisal held insufficient allegation of damage.

3. Re-appraisal of property ordered sold by administratrix held properly ordered, it appearing that original appraisal was too high (C. S., sec. 7630).

4. That re-appraisal was had on day of confirmation of administratrix's sale of realty held not improper (C. S., sec. 7630).

5. Whether sale of realty by administratrix should be ordered held wholly within court's discretion (C. S., secs. 7616, 7622).

6. Record held not to show that order authorizing administratrix to sell realty was abuse of discretion (C. S., secs. 7616, 7622).

7. That some realty sold was in Oneida county, while all sale notices were posted in Bannock county, could not affect administratrix's sale of Bannock county property.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Jay L. Downing, Judge.

Action to set aside sale. From a judgment of dismissal, plaintiffs appeal. Affirmed.

Judgment affirmed; costs to respondent.

F. E. Tydeman, for Appellants, cites no authorities on points decided.

Merrill & Merrill, for Respondent.

There are no sufficient allegations of active fraud alleged in this case and lack of jurisdiction does not appear upon the face of the record. Hence, orders and decrees of the probate court cannot be attacked collaterally. (Clark v. Rossier, 10 Idaho 348, 3 Ann. Cas. 231, 78 P. 358; Shane v. Peoples, 25 N.D. 188, 141 N.W. 737; Blickensderfer v. Hanna, 231 Mo. 93, 132 S.W. 678.)

Mere irregularities are insufficient upon which to attack the jurisdiction of the court. (Bancroft's Probate Practice, p. 1168; Lake v. Hathaway, 75 Kan. 391, 89 P. 666; Swinehart v. Turner, 44 Idaho 461, 259 P. 3; Blackman v. Mulhall, 19 S.D. 534, 104 N.W. 250.)

LEE, J. Givens, C. J., and Budge, Varian and McNaughton, JJ., concur.

OPINION [292 P. 593]

[49 Idaho 795] LEE, J.

Sarah Harkness, as administratrix of her deceased husband's estate, secured an order of the probate court of Bannock county directing the sale of certain lands belonging to the estate. The sale was made and confirmed, the administratrix issued her deed, and through subsequent mesne conveyances the defendant and respondent, W. F. Hartwick, came into possession of a portion of the lands, the same being situate in Bannock county.

Appellants, all of whom were minor devisees at the time of sale, brought an action, some fifteen years later, in the district court of Bannock county to...