In Re Estate Stroup

• Decision Date: 18 January 1918
• Docket Number: 4222
• Citation: 40 S.D. 37,166 N.W. 155
• Parties: IN RE ESTATE OF WILLIAM F. STROUP, DECEASED.
• Court: South Dakota Supreme Court

40 S.D. 37

166 N.W. 155

IN RE ESTATE OF WILLIAM F. STROUP, DECEASED.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. Alva E. Taylor, Judge

#4222--Affirmed

A. W. Wilmarth

Attorneys for Appellant.

Parliman & Parliman

Attorneys for Respondent.

Opinion filed January 18, 1918. Rehearing denied March 8, 1918

WHITING, P. J.

In the due course of probate proceedings, a claim was presented to the administratrix. Acting under the provisions of section 174, Prob. Code, as amended by chapter 207, Laws 1913, the administratrix made her report on claims presented; the county court fixed a day for a hearing upon such claims; and, upon a date to which the hearing was adjourned, such court entered its written order or judgment by which it was adjudged, among other things, that the claim first above mentioned be disallowed. More than a year subsequent to the entry of such judgment the claimant moved the county court for an order opening up such judgment, so far as it pertained to its claim, and providing that a date should be fixed at which such court would again consider such claim. An order was entered granting the relief asked for. From such order an appeal was taken to the circuit court upon questions of law only, and the order was affirmed; and from such judgment of affirmance this appeal was taken.

Appellant contends that the county court acquired no jurisdiction to open up its judgment because of the fact that the notice of motion was served on the attorney for the administratrix instead of upon the administratrix. There is no merit in such contention. We refrain from expressing or intimating any views upon the question of whether or not a notice of motion, which sought to open up an administration of an estate after an order of final distribution and discharge of administrator had been entered, could be properly served upon the attorney who had been attorney of record for the administrator. In this case the administration was not closed at the time the motion was made, and service upon the record attorney for administratrix was clearly sufficient. Section 12, Prob. Code, as amended by chapter 164, Laws 1913; section 553, C. C. P.

Appellant contends that the offer disallowing the claim was a final order, and that the county court was without power to open, set aside or vacate it, at least after the term at which such order was entered. The county court, in the probating of estates, is a court of general jurisdiction. Blackman v. Mulhall, 104 N.W. 250. As such court of general jurisdiction it has the same inherent powers over its orders and judgments as is vested in other courts of general jurisdiction. Moreover, section 151, C. C. P., provides:

"The court may ... in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect. ... "

And section 12, Prob. Code, as amended by chapter 164, Laws 1913, provides:

"The process, pleadings, practice and modes of procedure and costs in the county courts shall be the same as provided for in the circuit courts of this state by the Code of Civil Procedure, or as may hereafter be provided for by law, and the process, orders, judgments, and decrees of such county courts shall have the same forms, force, lien, and effect as in the circuit court, and the clerks of said county courts shall charge and collect like fees in the county courts as in the circuit courts for similar services."

But to place the power of the county court beyond all possible question, the Legislature, by chapter 63, Laws 1909, amended Subdivision 10, Sec. 25 Prob. Code, so that it expressly gives to the county court the plower to "open up ... any order or judgment made by such court." This was exactly what the county court did in the present case.

Appellant contends that the provision of statute, which authorizes a claimant, whose claim has been disallowed by the county court, to bring an action in circuit court thereon, provides the sole...