In re Anderson's Estate
| Decision Date | 13 October 1948 |
| Docket Number | 7091. |
| Citation | 34 N.W.2d 413,76 N.D. 163 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The county court derives all its powers and authority from the Constitution and statutes. While it is a court of limited jurisdiction its decrees in matters within its jurisdiction and in conformity with its statutory authority are entitled to the same faith and credit as judgments of other courts of record.
2. The county court must have jurisdiction not only of the parties and the subject matter but must also substantially follow the statute in the exercise of its powers to render validity to its decrees.
3. The settling of a final account is made by statute a prerequisite to the rendering of a final decree of distribution by the county court.
4. A decree of the county court may be attacked by motion in the proceeding in which it was rendered at any time on the ground of the nonexistence of any fact necessary to jurisdiction.
5. The record is examined and it is held that the final decree of distribution in this case was rendered prior to the final settlement of the estate and therefore beyond the authority of the county court.
Ingomar M. Oseth, of Bismarck, for appellants.
August Doerr, of Napoleon, for respondents.
On the 5th day of May, 1936, D. L. Anderson, plaintiff and appellant filed in the county court of Logan County a petition for letters of special administration in the estate of David W Anderson and a petition for letters of administration. Letters of special administration were granted him the same day. A citation hearing the petition for the appointment of administrator was issued that day, returnable on the 27th day of May 1936. Service thereof by publication and mailing was made. On the return date all the respondents appeared and filed waivers of service of all citations and notices required to be given in the course of administration of the estate. The county court obtained jurisdiction of both the subject matter and the parties. Plaintiff was thereupon appointed administrator. He duly qualified and entered upon his duties.
The notice to creditors was given, appraisers appointed and inventory and appraisement filed and allowed. That far the proceedings seem to have been strictly in accordance with statute.
An unverified statement of the assets of the estate and of the payments made so far in the course of administration was filed by the administrator November 27, 1936. Then a purported final report and account and petition for distribution was filed by the administrator on May 27, 1939. No action was taken on either of such reports.
Also on May 27, 1939, the administrator filed a petition for the appointment of a disinterested commission to re-appraise and recommend to the court a partition in severalty of the property of the estate. Together with that petition a stipulation for partition of the assets of the estate among the heirs, signed by two of the respondents, was filed. No appearance or stipulation was signed by two of the respondents. On the same day the county court appointed one man as such a commission. The commissioner duly qualified and on the 7th day of March 1940, filed his report including an appraisement of such of the property as he believed to have financial value and recommended a partition thereof. On the same day the county court issued an order confirming the report of the commissioner and ordering the distribution of the property in accordance with his recommendations.
A petition was filed on February 17, 1940 by one of the heirs asking for a full accounting by the administrator. A citation was issued on that petition requiring the administrator to file his final report and accounting or show cause on the 7th day of March 1940. On that date an answer was filed by the administrator. No action was taken. On April 8th 1940, the administrator filed a supplemental accounting and a citation was issued thereon returnable April 20, 1940. No action was taken on that, but on April 20th a final decree of distribution, predicated on the recommendation of the commissioner on partition, was issued by the county court. This was not recorded in the Register of Deeds office until March 12, 1942.
Also on April 20, 1940, an application was made by the administrator for determination of the North Dakota estate tax. That was determined by the county court April 24, and approved by the Tax Commissioner on April 27, 1940.
No further action seems to have been taken concerning the estate until the 26th of June 1945, when an application was filed by the administrator to set aside the proceedings upon cartition and to vacate the alleged decree of final distribution. A citation on that petition was issued returnable August 28, 1945. Due service of that citation was made. The county court denied and dismissed that application.
On August 27, 1945, the administrator filed an amended report and accounting and petitioned for a hearing thereon. A citation was issued on that, returnable September 27th. On September 25th objections thereto were filed. On September 27th the county court denied a hearing and dismissed the petition.
An appeal from both orders was taken to the district court of Logan county. After trial the district court reversed the order of the county court denying a hearing on the final account and remanded that feature to the county court with directions to proceed with an accounting. The district court, however, denied the application to set aside the final decree and from that order this appeal is taken. A trial de novo is demanded.
The county court derives all its powers and authority from the Constitution and the statutes. It has no common law jurisdiction. It is a court of limited jurisdiction. It is, however, generally recognized and well settled that its decrees in matters within its jurisdiction and in conformity with its statutory authority are entitled to the same faith and credit as judgments of other courts of record. Sec. 27-0739, NDRC 1943; Reichert v. Reichert, 41 N.D. 253, 170 N.W. 621; Sjoli v. Hogenson et al., 19 N.D. 82, 122 N.W. 1008; Fischer v. Dolwig, 29 N.D. 561, 151 N.W. 431.
Sec. 27-0709, subdiv. 15, NDRC 1943, provides that in the exercise of its jurisdiction the county court shall have power Sec. 30-0309 provides that the application for a rehearing on the ground of mistake, inadvertence, surprise or excusable neglect must be made within thirty days after the date of the order on which rehearing is sought. In case of irregularity in the service of process, fraud, misconduct of the prevailing party or his attorney or agent, or abuse of discretion on the part of the court which prevented the applicant from appearing or maintaining a material issue on his part at the former hearing or in case of newly discovered evidence the application must be made within one year after the date of the decree or order to which the application relates. No limitation of time, however, is placed by the statutes on an application for a rehearing or on a motion to vacate on the ground of the nonexistence of any fact necessary to jurisdiction.
The report of the commissioner on partition was approved March 7, 1940. Final decree of distribution was rendered April 20, 1940. The application to vacate was not made until June 26, 1945. All the grounds alleged in the petition and enumerated in the statute except the lack of jurisdiction were, therefore, barred. Reichert v. Reichert, supra; Bellingham State Bank v. McCormick, 55 N.D. 700, 215 N.W. 152.
The question then arises whether the evidence discloses the non-existence of any fact necessary to give the county court jurisdiction to decree the final distribution of the estate.
Even if the county court has jurisdiction of the parties and of the subject matter, it must also substantially follow the procedure prescribed by statute in order to act with authority on any matter pending before it. 'Where statutory powers are conferred on a court of inferior jurisdiction, and the mode of executing those powers is prescribed, the course pointed out must be substantially pursued, or the judgments of the court will be void.' 49 C.J.S., Judgments, § 13, p. 40. 'A court which has statutory jurisdiction of an action may lose the jurisdiction and do acts without the authority of the law so that its judgment will be void for want of jurisdiction.' State ex rel. Lang v. Civil Court of Milwaukee County, 228 Wis. 411, 280 N.W. 347.
In re Roukos' Estate, 140 Me. 183, 39 A.2d 663, 664, it is held: ...
To continue reading
Request your trial