Henkle v. Slate

• Decision Date: 24 March 1902
• Citation: 40 Or. 349,68 P. 399
• Parties: HENKLE v. SLATE.
• Court: Oregon Supreme Court

68 P. 399

40 Or. 349

HENKLE v. SLATE.

Supreme Court of Oregon

March 24, 1902

Appeal from circuit court, Linn county; R.P. Boise, Judge.

Proceedings by J.E. Henkle against Porter Slate to have the defendant removed as administrator of the estate of Frances Slate deceased. From a judgment in favor of the defendant, the plaintiff appeals. Reversed.

This controversy involves the right of a county court to appoint an administrator of the estate of an intestate who at the time of her death was an inhabitant of another county. The transcript shows that the defendant applied to the county court of Linn county to be appointed administrator of the estate of Frances Slate, deceased; his petition therefor, so far as material herein, being as follows: "Your petitioner would most respectfully allege and show that Frances Slate died intestate in Benton county, Oregon, on the 22d of November, 1895, and at the time of her death she was a resident and an inhabitant of Benton county, Oregon, and at said time she left an estate in Linn county, Oregon consisting of landed property of the probable value of $4,000; that there has been no administration of said estate." This petition was granted, and the facts as stated therein are recited in the order appointing the defendant. Thereafter the plaintiff petitioned the county court of Linn county to revoke such appointment, alleging that he had been appointed administrator of said estate by the county court of Benton county, and that he had duly qualified and entered upon the discharge of his trust. The defendant, having been cited to appear, demurred to the petition for his removal on the ground, among others, that it did not state facts sufficient to entitle the plaintiff to the relief demanded. The court, however, overruled the demurrer, relieved the defendant of his trust, and revoked his letters of administration, whereupon he appealed to the circuit court for Linn county, which reversed the decree of the county court, sustained the demurrer interposed therein and dismissed the plaintiff's petition; and from such decree the latter appeals to this court.

H.C Watson, for appellant.

J.K. Weatherford and J.J. Whitney, for respondent.

MOORE, J. (after stating the facts).

The questions to be considered are (1) whether the county court of Linn county had jurisdiction of the decedent's estate and (2) if it had no authority to appoint an administrator, could it in a proceeding of this character revoke such appointment?

Considering these inquiries in their inverse order, the rule is settled in this state that a county court, in the transaction of probate business, is a court of general and superior jurisdiction. Russell v. Lewis, 3 Or. 380; Tustin v. Gaunt, 4 Or. 305; Monastes v. Catlin, 6 Or. 119; Oh Chow v. Brockway, 21 Or. 440, 28 P. 384. Its decrees pertaining to the administration of a decedent's estate import absolute verity, and, this being so, they cannot be overthrown by evidence aliunde the record; but when such a decree sets out what was done, and the facts so recited are insufficient to confer jurisdiction, a want thereof is apparent upon the face of the record, in which case it is void, and may be impeached upon a collateral attack. 1 Woerner, Adm'n (2d Ed.) § 144; Tustin v. Gaunt, supra; Murray v. Murray, 6 Or. 17. Every court of superior jurisdiction possesses inherent power to vacate entries in its record of judgments, decrees, or orders made without jurisdiction, notwithstanding the term at which they were rendered may have expired. Ladd v. Mason, 10 Or. 308; Ramp v. McDaniel, 12 Or. 108, 6 P. 456; Cochran v. Baker, 34 Or. 555, 52 P. 520, 56 P. 641. "Where the record," say the editors of the Encyclopaedia of Pleading and Practice (volume 19, p. 841), "affirmatively discloses a want of jurisdiction, the appointment of an administrator may always be collaterally attacked." While the petition to revoke the defendant's letters of administration may have been an indirect attack upon the order appointing him, if it should appear from an inspection of the record that such order was made without jurisdiction the county court possessed plenary power and was authorized to purge its record of such void order.

Considering the authority of the county court of Linn county to appoint an administrator of the estate of a person who at the time of her death was an inhabitant of Benton county, the statute prescribing jurisdiction of the subject-matter in such cases is as follows: "Proof of a will shall be taken by the county court as follows: (1)...