In re Auerbach's Estate

• Decision Date: 11 June 1901
• Citation: 65 P. 488,23 Utah 529
• Parties: In re AUERBACH'S ESTATE; v. MEYER et al WILSON
• Court: Utah Supreme Court

65 P. 488

23 Utah 529

In re AUERBACH'S ESTATE;

WILSON v. MEYER et al

Supreme Court of Utah

June 11, 1901

Appeal from District Court, Salt Lake County.--Hon. W. C. Hall Judge.

Petition by R. G. Wilson for an order confirming a sale of the interest of Frederick H. Auerbach, deceased, in the firm of F. Auerbach & Bro. From an order refusing to confirm the sale, petitioner appeals.

AFFIRMED.

Messrs Day & Street for appellant.

Messrs Marshall, Royle & Hempstead for respondent executors.

Ogden Hiles, Esq., for respondent S. H. Auerbach.

BARTCH, J. Miner, C. J., and Baskin, J., concur.

OPINION

BARTCH, J.

This is an appeal from an order of the district court, sitting as a court of probate, refusing to confirm a sale of certain personal property which had been made by the executors of the estate of Frederick H. Auerbach, deceased, pursuant to an order of the court. It appears from the record that the subject of the sale consisted of the decedent's share (half interest) in the property of the firm of F. Auerbach & Bro. The same had been exposed to sale by the executors, and bids received therefor from Samuel H. Auerbach, the surviving partner, and R. G. Wilson; the latter being the highest bidder. Upon receipt of the bids, a petition for confirmation of sale in favor of Wilson was presented to the court by the executors, and one by Wilson, and objections thereto by the surviving partner. After the hearing on these petitions and objections the court "ordered that the sale of said personal property be declared null and void, as the court had no jurisdiction in the premises in ordering said sale." From this order Wilson appealed, and counsel for respondent Auerbach now challenges his standing in this court by a motion, concurred in by counsel for executors, that the cause be not heard upon its merits, on the ground that no appeal lies from the order. Whether or not such an order is appealable must be determined by reference to the provisions of the constitution and statute upon this subject. Section 9, article 8, Constitution, so far as material here, reads, "Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates, and in cases of guardianship, as shall be provided by law." By statute (section 3300, Rev. St.), inter alia, it has been enacted, "Appeals shall also lie from the final orders and decrees of the court in the administration of decedent estates." Here, as will be observed, is an express constitutional and a statutory provision granting the right of appeal, not only from the final decrees, but also from the final orders of a court in the administration of decedent estates. If, then, the order in controversy was a final order, there existed a right of appeal. That it was a final order there appears to be, upon reflection, little room for doubt. The order was based upon the question of jurisdiction, and ended the controversy between the parties litigant. Neither party could proceed further. It was such a determination of the proceedings as, undisturbed, will operate as a bar to any similar application for sale and confirmation, founded upon the existing facts. Such an order is final, within the meaning and intent of the Constitution and statute. North Point Consol. Irr. Co. v. Utah & S. L. Canal Co., 14 Utah 155, 46 P. 824; Watson v. Mayberry, 15 Utah 265, 49 P. 479; Spence v. Parker, 57 Ala. 196; Robinson v. Glancy, 69 Pa. 89; Ferguson v. Carson, 13 Mo.App. 29. Counsel for the respondent appear to rely upon the two cases first above cited as sustaining their position on this point, but we apprehend that a careful examination will show that the doctrine of those cases does not militate against the views hereinbefore expressed. The constitutional provision therein considered and construed relates simply to final judgments, while the one herein interpreted relates to final orders and decrees. The former does not in express terms refer to final orders.

It is further insisted that Wilson was not a party to the suit, but was a mere stranger thereto, and that therefore he had no right of appeal. It is true, he was not originally a party to the proceedings, but under the order of sale made by the court the executors undertook to sell the property. They published notice of sale, and invited bids from all persons who might desire the purchase, upon the condition that each bidder should accompany his bid with a certified check in the sum of $ 10,000, payable to the executors. In accordance with the notice of sale, the appellant submitted a bid for the property, and became the highest bidder. Thereupon the executors recognized him as the purchaser, and appeared by petition before the court, asking that the sale so made to him be confirmed. The appellant likewise appeared by petition in his own behalf for confirmation, while the surviving partner, who was also a bidder, appeared by petition in opposition to confirmation. The court, with all these parties before it, granted a hearing, and thereupon declared the sale null and void. The appellant thus became at least a quasi party to the proceedings, and it would seem, if the court erred in making the order, he was, in equity, entitled to have it reviewed on appeal. By his bid and payment of the amount required as a deposit, he subjected himself quoad hoc to the jurisdiction of the court, and could, provided the court had jurisdiction to order the sale, have been required to perform his contract specifically, so as to complete the purchase. There would seem to be no good reason why such a purchaser should not acquire a corresponding right to seek such relief, when dissatisfied with the action of the court, as the rules of equity proceedings afford. In Delaplaine v. Lawrence, 10 Paige 602, Chancellor Walworth said: "In sales made by a master under decrees and orders made by this court, the purchasers who have bid off the property and paid their deposits in good faith are considered as having acquired inchoate rights, which entitle them to a hearing upon the question whether the sales shall be set aside. And, if the court errs by setting aside the sale improperly, they have a right to carry the question, by appeal, to a higher tribunal." Blossom v. Railroad Co., 1 Wall. 655, 17 L.Ed. 673; Butterfield v. Usher, 91 U.S. 246, 23 L.Ed. 318. We are of the opinion that, under the facts and circumstances of this case, the appellant was entitled to pursue his remedy by appeal.

Passing now to the merits of the case, the main question is, did the court err in refusing to confirm the sale? The record shows that Samuel H. Auerbach is the surviving partner of the firm of F. Auerbach & Bro which firm was engaged in the mercantile business, and the property which was the subject of the sale belonged to the firm, and was exposed to sale as the share of the deceased partner. Respecting the status of a surviving partner as to the firm assets, the statute (section 3918, Rev. St.) provides: "When a partnership exists between the decedent, at the time of his death, and any other person, the surviving partner has the right to continue in the possession of the partnership, and to settle its business, but the interests of the decedent in the partnership must be included in the inventory and be appraised as other property. The surviving partner must settle the affairs of the partnership without delay and account with the executor or administrator, and pay over such balance as may from time to time be payable to him in right of the decedent. Upon the application of the executor or administrator, the court or judge may, whenever it appears necessary, order the surviving partner to give a bond in a prescribed sum or render an account, and in case of neglect or refusal may, after notice, compel it by attachment; and the executor or administrator may maintain against him any action which the decedent could have maintained." Under these provisions a surviving partner is entitled to continue in possession of the partnership for the purpose of settling up its business; and this, in...