Harkness v. Village of McCammon, 5663

CourtUnited States State Supreme Court of Idaho
Writing for the CourtGIVENS, J.
Citation298 P. 676,50 Idaho 569
PartiesHENRY O. HARKNESS, JOHN ABNER HARKNESS, and THEODORE R. HARKNESS, Appellants, v. VILLAGE OF MCCAMMON, BANNOCK COUNTY, STATE OF IDAHO, a Municipal Corporation, Respondent
Decision Date21 April 1931
Docket Number5663

298 P. 676

50 Idaho 569

HENRY O. HARKNESS, JOHN ABNER HARKNESS, and THEODORE R. HARKNESS, Appellants,
v.

VILLAGE OF MCCAMMON, BANNOCK COUNTY, STATE OF IDAHO, a Municipal Corporation, Respondent

No. 5663

Supreme Court of Idaho

April 21, 1931


EXECUTORS AND ADMINISTRATORS-SALE, ACTION TO SET ASIDE-FRAUD.

1. Petition by heirs to set aside sale by administrator sufficiently alleged fraud by administrator and attorney in making sale.

2. Collusion and conspiracy are considered as "extrinsic fraud" available to heirs seeking to set aside sale by administrator for fraud.

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

Action to set aside sale. Judgment for defendant. Reversed and remanded.

Reversed and remanded, with instructions. Costs to appellants.

F. E. Tydeman, for Appellants.

The jurisdiction of the probate court to sell property of an estate depends upon the following jurisdictional steps: a sufficient petition for sale, a sufficient order to show cause and due publication thereof, notice of sale in a manner provided by law, and lawful notice of the hearing on the return of sale. In addition to the above the sale must be free from any wilful fraud or acts on the part of the administrator or anyone connected with the sale which amount to fraud. (Kline v. Shoup, 35 Idaho 527, 207 P. 584; 11 R. C. L. 322, sec. 375; Bancroft's Probate Practice, p. 602; Dugan v. Superior Court, 149 Cal. 98, 117 Am. St. 119, 84 P. 767; In re Griffith Estate, 84 Cal. 107, 24 P. 381; Adams v. Bradley, 99 Cal. 216, 33 P. 841.)

Merrill & Merrill, for Respondent.

An order to show cause why real estate should not be sold by an administrator which does not specifically describe the property but states that the property is described in the petition for sale on file in the probate court's office, is not invalid as the statute does not require the description to be set out in said order. (Harkness v. Utah Power & Light Co., 49 Idaho 750, 291 P. 1049, 1051; C. S., secs. 7618, 7763; Roach's Estate, 139 Cal. 17, 72 P. 393.)

GIVENS, J. Lee, C. J., and Varian and McNaughton, JJ., concur. Budge, J., dissents.

OPINION [298 P. 677]

[50 Idaho 570] GIVENS, J.

H. O. Harkness died April 5, 1911, seised of certain real property, and leaving a wife and five minor children. Mrs. Harkness, as administratrix of the estate, sold certain of said property, which sales were attacked in Harkness v. Utah Power & Light Co., 49 Idaho 756, 291 P. 1051, and Harkness v. Hartwick, 49 Idaho 794, 292 P. 592.

Mr. J. H. Wylie Sessions later succeeded Mrs. Harkness as administrator, and sold the McCammon waterworks in question herein to J. C. Jensen, who in turn sold them to respondent.

Appellants, the minor heirs, now of age, with the exception of one who appears by guardian, brought this action in time, under the authority of C. S., secs. 7652 and 7653, to set aside said sale. A general demurrer to the amended complaint was sustained.

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1 practice notes
  • Moyes v. Moyes, 6638
    • United States
    • United States State Supreme Court of Idaho
    • October 5, 1939
    ...524; Zounich v. Anderson, 35 Idaho 792, 208 P. 402; Scanlon v. McDevitt, 50 Idaho 449, 451, 296 P. 1016; Harkness v. Village of McCammon, 50 Idaho 569, 572, 298 P. 676.) It should be remembered that respondent had a plain, speedy and adequate remedy at law both by appeal and by motion to va......
1 cases
  • Moyes v. Moyes, 6638
    • United States
    • United States State Supreme Court of Idaho
    • October 5, 1939
    ...524; Zounich v. Anderson, 35 Idaho 792, 208 P. 402; Scanlon v. McDevitt, 50 Idaho 449, 451, 296 P. 1016; Harkness v. Village of McCammon, 50 Idaho 569, 572, 298 P. 676.) It should be remembered that respondent had a plain, speedy and adequate remedy at law both by appeal and by motion to va......

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