Harkness v. Utah Power & Light Co., 5564

• Court: United States State Supreme Court of Idaho
• Writing for the Court: LEE, J.
• Citation: 49 Idaho 756,291 P. 1051
• Parties: HENRY O. HARKNESS, JOHN A. HARKNESS, Also Known as ABNER J. HARKNESS, and THEODORE R. HARKNESS, by F. M. BISTLINE, Guardian ad Litem, Appellants, v. UTAH POWER & LIGHT COMPANY, a Corporation, Respondent
• Decision Date: 01 October 1930
• Docket Number: 5564

291 P. 1051

49 Idaho 756

HENRY O. HARKNESS, JOHN A. HARKNESS, Also Known as ABNER J. HARKNESS, and THEODORE R. HARKNESS, by F. M. BISTLINE, Guardian ad Litem, Appellants,
v.
UTAH POWER & LIGHT COMPANY, a Corporation, Respondent

No. 5564

Supreme Court of Idaho

October 1, 1930

JUDGMENT - PROBATE COURT - ORDERS AND DECREES-PRESUMPTION OF VERITY - EVIDENCE - EXECUTORS AND ADMINISTRATORS - SALE OF ESTATE ASSETS.

1. Judgments of courts of record can be collaterally attacked only for fraud or lack of jurisdiction of parties and subject matter.

2. Probate court is original court of record, and its judgments are presumed regular unless lack of jurisdiction appears from record.

3. Instruments incorporated by reference into petition for sale by administratrix, not complained of as not conforming to statute, are presumed regular.

4. Recital in order of sale by administratrix that court heard proofs and it appeared, sale was necessary raised presumption that proofs satisfied statute (C. S., sec. 7617).

5. Order to show cause for sale by administratrix need not be published for full term of four successive weeks, but merely each week of a consecutive four (C. S., sec. 7619).

6. Finding that publication of order to show cause for sale by administratrix was sufficient is presumed correct, where record showed nothing to contrary (C. S., sec. 7619).

7. Order to show cause for sale by administratrix held not invalid because not describing property (C. S., sec. 7617).

8. Order to show cause for sale by administratrix held not objectionable as not stating whether property was real or personal.

9. Order to show cause for sale by administratrix held not objectionable as published in "Semi-Weekly" and not "Semi-Weekly Tribune," as directed.

10. Order for sale of property by administratrix held not invalid on collateral attack because affidavit of publication was not executed until after hearing.

11. Affidavit of publication of order to show cause for sale by administratrix held not objectionable because signed by "chief" rather than principal clerk of newspaper.

[49 Idaho 757]

12. Order for sale by administratrix held not objectionable as not providing for sale of personalty at public auction, where property operated as unit constituted realty (C. S., sec. 7610).

13. Failure to require additional bond of administratrix on sale of estate cannot be taken advantage of on collateral attack.

14. Notice of sale of property of estate by administratrix ordered to be posted held not objectionable because posted by administratrix.

15. Probate proceedings are in their nature quasi in rem, and unless required by statute, no notice to parties interested is necessary.

16. Statute, providing for service of order to show cause for sale by administratrix or publication of notice, is all-inclusive and unaffected by other statutes providing additional procedure (C. S., secs. 7619, 7769, 7773).

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

Action to vacate sale. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

Judgment affirmed; costs to respondent. Petition for rehearing denied.

F. E. Tydeman, for Appellants.

The petition for the sale does not state facts sufficient to give the court authority to sell the property.

In the case of Kline v. Shoup, 38 Idaho 202, 226 P. 729, 733, the court quotes favorably from Ruling Case Law as follows:

11 R. C. L. 322, sec. 374: "Since proceedings by an executor or administrator of an estate of a decedent to sell real estate are adverse to the heirs at law, all parties in interest should be notified, including of course, the heirs and devisees, and unless such notice is given, the Probate Court will not have jurisdiction, and the sale will be void and pass no title to the purchaser."

The court further quotes 24 C. J. 598, as follows:

"If the record shows service which is insufficient and fails to show that the Court found that it had jurisdiction, the presumption is rebutted and it must be held that the Court acted upon insufficient notice."

The sale of the property of an estate is a separate proceeding and the authority of the administratrix to sell the property is based upon the provisions of the statute. Unless the provisions of the statute are followed, the court does not have jurisdiction to sell, and any sales made in violation of the mandatory provision of the statute are void.

"In the recent case of Kline v. Shoup, 35 Idaho 527, 207 P. 584, it was held that the sale of real property of a decedent's estate is a special proceeding in the administration of such estate, and that a failure to give the notice required by the statute is jurisdictional and renders the order of sale and all subsequent proceedings thereunder void as to the interest of persons not served and that the sale may be set aside upon motion in the Probate Court or on appeal from such judgment or by a proper proceeding in equity." (Swinchart v. Turner, 38 Idaho 602, 224 P. 74.)

The court lacked jurisdiction to make the sale for the reason that the order to show cause failed to give the statutory notice. (C. S., secs. 7618, 7619.)

The requirement that the notice given by publication of the order to show cause must be completed five days before the day of the hearing is mandatory, and the full five days must elapse between the end of the last day on which the order is published and the beginning of the day on which the hearing is to be held. (See Greve v. St. Paul S. & T. R. Co., 25 Minn. 327; 26 R. C. L. 736; People v. Clay Tp. Highway Commrs., 38 Mich. 247.)

Merrill & Merrill, for Respondent.

While C. S., sec. 7617, prescribes what a petition for sale of real estate should contain, yet the provisions of this section are directory and not mandatory, and a substantial compliance therewith is sufficient. (C. S., sec. 7617; Steele v. Kelley, 32 Okla. 547, 122 P. 934; Richardson v. Butler, 82 Cal. 174, 16 Am. St. 101, 23 P. 9; In re Heydenfeldt's Estate, 127 Cal. 456, 59 P. 839.)

The order to show cause why an order of sale of real and personal property should not be made need not contain a description of the property sought to be sold. (C. S., secs. 7618, 7763; In re Roach's Estate, 139 Cal. 17, 72 P. 393.)

Where there is no fraud alleged and lack of jurisdiction does not appear upon the face of the record, the orders and judgment of a 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.)

Following the above rule, it is held that a charge that the administrator failed to give a bond was a mere irregularity, constituting a collateral attack. (Swinehart v. Turner, 44 Idaho 461, 259 P. 3.)

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

OPINION [291 P. 1052]

[49 Idaho 759] LEE, J.

H. O. Harkness died April 5, 1911, leaving property in Bannock and Oneida counties. His widow, Sarah Harkness, having qualified as administratrix and having found it necessary to sell part of the estate to pay debts, secured an order directing the sale of a certain electric light plant at McCammon, Idaho. At the ensuing sale which was confirmed by the probate court of Bannock county on August 10, 1914, respondent, Utah Power & Light Company, became the...