Hartford Accident & Indem. Co. v. Goldberg

• Decision Date: 30 June 1936
• Docket Number: Case Number: 23613
• Citation: 61 P.2d 704,1936 OK 461,178 Okla. 75
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. GOLDBERG
• Court: Oklahoma Supreme Court

1936 OK 461

61 P.2d 704

178 Okla. 75

HARTFORD ACCIDENT & INDEMNITY CO. v. GOLDBERG

Case Number: 23613

Supreme Court of Oklahoma

Decided: June 30, 1936

Syllabus

¶0 1. INFANTS - Majority Pending Action - Substitution of Adult Plaintiff.

Upon the attaining of majority by a minor plaintiff, represented by next friend, the cause may, at his election, proceed in his name as an adult, and where such substitution is made without objection in the trial court, and the right to continue said suit is raised only by a demurrer to the evidence, it is not error for the trial court to overrule said demurrer predicted on said ground alone.

2. EXECUTORS AND ADMINISTRATORS - Conclusiveness of Decree of Distribution - Collateral Attack.

A decree of distribution made by the county court in a probate proceeding having jurisdiction of the settlement of the estate is conclusive as to the rights of the parties interested in the estate unless reversed or modified on appeal, and such decree is not subject to collateral attack.

3. SAME - Order of County Court Vacating Final Decree of Distribution After Two Years Held Invalid as Against Surety on Bond of Administratrix not Served With Notice of Application to Vacate.

Where the final account of the administratrix of an estate is approved by the county court and a final decree of distribution entered and said administratrix and her bondsman discharged, and more than two years thereafter said final decree of distribution is vacated by the county court upon application of a minor heir to said estate, held, that said order vacating said decree of distribution is without force and effect as against the surety on the bond of said administratrix where it is shown that no notice of said application to vacate was served upon said surety.

Appeal from District Court, Caddo County; Eugene Rice, Judge.

Action by Lester O. Goldberg against the Hartford Accident & Indemnity Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Rittenhouse, Webster & Rittenhouse and F.E. Chappell, for plaintiff in error.

Morris & Wilhite, for defendant in error.

OSBORN, V. C. J.

¶1 This action was instituted in the district court of Caddo county by Lester O. Goldberg, a minor, by F.W. Fagg, his guardian, against the Hartford Accident & Indemnity Company, a surety on the bond of Lela Goldberg, administratrix of the estate of O.J. Goldberg, deceased, wherein it was sought to recover a certain amount with which said administratrix had been surcharged by an order of the county court of Caddo county. The cause was tried to the court and a judgment rendered in favor of plaintiff, from which defendant has appealed.

¶2 On the 5th day of February, 1925, Lela Goldberg procured a divorce from O.J. Goldberg in the district court of Caddo county, Okla., and thereafter on the 3rd day of April, 1925, said O.J. Goldberg died. On April 9, 1925, the divorced wife, Lela Goldberg, filed her petition for appointment as administratrix of the estate of O.J. Gold-deceased, alleging that immediately after the granting of said divorce and said O.J. Goldberg consummated a common-law marriage and she returned to his home and lived with him as his wife until his death. On April 21, 1925, the county court appointed Lela Goldberg administratrix of the estate of O.J. Goldberg, deceased, and plaintiff in error, Hartford Accident & Indemnity Company, signed her bond as surety. On March 4, 1926, the county court of Caddo county made an order approving the final report of Lela Goldberg as administratrix of the estate of O.J. Goldberg, deceased, and made finding of heirship to the effect that Lela Goldberg was the surviving wife of said deceased and that she and Lester Goldberg (son of O.J. Goldberg and Lela Goldberg) were the sole and only surviving heirs of said deceased and that each inherited an undivided one-half interest in the estate of said deceased, and made distribution accordingly. No appeal has ever been taken by anyone from this order.

¶3 On the 11th day of December, 1928, Lester Goldberg, by next friend, filed his action against Lela Goldberg in the district court of Caddo county (being cause No. 7553 in that court), alleging that the decree of heirship and distribution above referred to was procured by fraud on the county court in that Lela Goldberg falsely represented to said county court that she was the common-law wife of said O.J. Goldberg, when she was in truth and in fact not his wife, and praying that said order of distribution be declared void and that he recover from her certain real estate, together with rents and profits thereon from and after distribution.

¶4 On the 11th day of February, 1929, upon motion for judgment upon the pleadings and without any evidence being introduced, the district court entered its judgment that the plaintiff, Lester Goldberg, have and recover from Lela Goldberg the lands mentioned in the petition and quieting title thereto as against said defendant. No order or judgment was made vacating the county court decree of heirship and distribution, nor was this decree even mentioned in the judgment.

¶5 At the same time with the pendency of this district court cause No. 7553, there had been filed and was pending in the county court a petition on behalf of said minor asking that the decree of heirship and distribution of March 4, 1926, be vacated on the ground that Lela Goldberg had been guilty of fraud upon said court in representing that she was the common-law wife of O.J. Goldberg at the time of his death.

¶6 On the 4th of April, 1929, the county court made an order upon this petition and an amended petition which had been filed setting up the district court judgment holding that the judgment of the district court in said cause No. 7553:

"Is res adjudicata and conclusively establishes the fact that the said Lela Goldberg was not the surviving wife of O.J. Goldberg, at the time of his death; that she obtained the orders of this court aforesaid by fraud, and that the plaintiff, Lester Goldberg, as the sole heir of O.J. Goldberg, deceased, inherited and was the owner of the land described in Plaintiff's petition and was entitled to the rents and profits thereon."

¶7 And, without the introduction of any evidence, the county court further made an order vacating its original decree of heirship and distribution of March 4, 1926. This order of the county court was appealed to the district court by Lela Goldberg and was affirmed by that court on the same ground, and has become final.

¶8 On the 29th day of October, 1930, the county court made an order in the original probate case surcharging the alleged widow, Lela Goldberg, with all that part of the estate which had been turned over to her as heir. All of these proceedings to vacate the decree of heirship and distribution and settlement of the accounts of the administratrix were without notice to the surety bonding company.

¶9 This action was thereupon brought by the guardian of Lester Goldberg against the Hartford Accident & Indemnity Company as surety on the bond of the administratrix to hold it for the amount with which the administratrix had been surcharged by the order of October 29, 1920. Judgment was rendered as prayed against the surety company upon the theory of res adjudicata, and it has appealed to this court.

¶10 During the pendency of this action, the minor, Lester Goldberg, reached his majority and had disappeared, and not even his guardian had seen him for a long time before he became of age, nor had he taken any steps after attaining his majority which might be taken as an election to proceed with the action in his own right. Contention is made by plaintiff in error that in this state of case the action abated until the ward came into court and made some affirmative election to proceed with the same.

¶11 It is contended by plaintiff in error that in an action commenced by next friend and continued by guardian during minority such circumstances it was the duty of the trial court to stay further proceedings a reasonable time for the plaintiff to come into court and make his election," if he should further desire to proceed with the action. Herein, the substitution of the adult plaintiff in lieu of the next friend and guardian was made and the trial court proceeded without objection except by demurrer to the evidence on the merits of the action. The same guardian and the same attorneys continued to participate in the case, and at least the presumption would be in favor of and not against the authority of said attorneys to represent said plaintiff in the absence of a disaffirmance on the part of the plaintiff, and in such situation the court would be warranted in presuming an election to proceed. Webb v. Harris, 32 Okla. 491, 121 P. 1082; Johnson v. Alexander, 66 Okla. 128, 167 P. 989; Phelan v. Stockyards Bank, 168 Okla. 232, 32 P.2d 270. This is not to say, however, that upon proper challenge of the right of the attorneys to proceed, the court could not make determination in accordance with the facts disclosed. The trial court did not err in overruling the demurrer predicated upon this ground alone.

¶12 The trial court held that the order of the county court of April 4, 1929, vacating the original decree of distribution of March 4, 1926, and the order of October 29, 1930, surcharging the administratrix with all of that part of the estate which had been turned over to her as an heir was binding upon defendant although defendant had no notice of said proceedings. It was held by the trial court that no notice to said defendant was necessary because it was in privity with the administratrix by reason of its contract of suretyship. As a defense to this action defendant pleads and relies upon the original decree of distribution as fixing and determining its liability and contends that it is not bound by subsequent orders of the county court, since it was not a party to any of said proceedings, had no notice thereof, and no...