In re Schultz's Estate
| Citation | 185 N.W. 24,192 Iowa 436 |
| Decision Date | 15 November 1921 |
| Docket Number | 33911 |
| Parties | IN RE ESTATE OF JACOB SCHULTZ |
| Court | Iowa Supreme Court |
Appeal from Poweshiek District Court.--D. W. HAMILTON, Judge.
PROCEEDING in probate, to set aside an order for the sale of real estate. Judgment denying the relief sought.
Affirmed.
Frank Bechly, for appellants.
J. G Shifflett and Boyd & Boyd, for appellees.
I.
Jacob Schultz died testate, in 1917. By his will, he designated his brother, Fred Schultz, as executor. Fred Schultz qualified as such, and on October 17, 1918, filed a duly verified petition in the office of the clerk of the district court of Poweshiek County, alleging that the personal property of the estate was insufficient to pay the indebtedness against the same, and that it was necessary to sell real estate for that purpose, and asked authority to sell Lot 3 in Schultz's Addition to the town of Malcolm, and Block 1 in Chapman's Addition thereto; and also that the court prescribe the notice to be given, and fix the time and place for hearing the application. On January 7, 1919, the court ordered that notice of the hearing be given by posting one notice on the bulletin board at the front door of the courthouse in Montezuma, Iowa, at least 10 days prior to January 20, 1919. On January 8th, a copy of the posted notice was filed in the office of the clerk of the district court, with the certificate of Glenn L. Eichhorn, clerk, indorsed thereon or attached thereto, reciting that a complete and correct copy thereof was posted on the bulletin board at the front door of the courthouse in Montezuma. The seal of the clerk's office was attached to the certificate. On January 20th, the court, after making full finding of all jurisdictional matters, and that the personal property was insufficient to pay the debts, authorized the executor to sell the above described real estate at public or private sale, but if at private sale, at not less than its appraised value. On September 9th following, the executor filed a report, showing the sale of the property to W. A. Currie at private sale, for the sum of $ 5,000, the appraised value thereof. The executor's report of sale was approved on the same day, and he was ordered to execute a deed to the purchaser in pursuance thereof. On November 10, 1919, John Schultz, Emma Lamb, et al., heirs at law of Jacob Schultz and legatees under his will, filed a motion in the office of the clerk to set aside the alleged default and order of sale, and for a new trial, upon the grounds that they did not have notice of the application of the order to sell the real estate; that the notice was served only by posting on the bulletin board in front of the courthouse at Montezuma; that, as the only proof of such service was the certificate, and not the affidavit of the clerk, the court acted without jurisdiction; and that the order and sale was of no effect, and is void. It was also alleged in the motion that Block 3 was the homestead of Jacob Schultz and his wife at the time of his death; and that same descended to his heirs, freed from the debts of their ancestor; and that no showing was made, before the order of sale was entered, that the personal property was insufficient to pay the debts that had been, or might be, proved against the estate. The motion was supported by the identical affidavit of each of the parties named, stating that no notice of the application of the executor was served upon them, and that they did not know about it until after the September term of court, at which the order was made. There was also an additional affidavit by May Broders that Block 3 was the homestead of her father and his wife, her stepmother, at the time of his death. The parties also filed answer, setting up the defenses already mentioned. W. A. Currie, the purchaser, intervened, and filed a resistance to the motion and application to set aside the order and the sale of the real estate to him, upon the ground that each and all of the parties named had full knowledge of the contemplated sale, acquiesced therein, and consented thereto, and that they are, therefore, bound by said proceedings. All of the affiants were cross-examined by counsel for the executor, and admitted that they knew that the executor contemplated a sale of the real property for the purpose of paying debts, and at least one or two of them admitted that they knew that application had been made to the court therefor. None of them, however, admitted knowledge of the posted notice.
No evidence was offered by appellants for the purpose of showing that the personal property was sufficient to pay the debts. As we interpret their testimony, appellants were prompted to seek to have the order of sale canceled and set aside for the reason that the property was sold too cheap. No evidence, however, was offered of its value. One of affiants stated that, shortly after his father's death, the heirs talked it over, and agreed that it should be sold for $ 6,800.
No claim is made that the posted notice was not sufficient in form or substance, but it is claimed by appellants that proof of service could only be made by affidavit, and that the certificate of the clerk was not sufficient proof of service: that is, that proof of service by affidavit indorsed thereon, or attached to a copy of the posted notice, is essential to the court's jurisdiction to order a sale of real estate; and that, without such affidavit, no authority existed to hear the application or to authorize the executor to sell the property. Counsel, throughout their argument, apparently confuse the proof of service required of a notice of the character in question with the proof required of the publication of an original notice of the commencement of an action. All of the cases cited by appellant relate to notice by publication. Broghill v. Lash, 3 Greene 357; Lot Two v. Swetland, 4 G. Greene 465; McGahen v. Carr, 6 Iowa 331; Tunis v. Withrow, 10 Iowa 305; Manion v. Brady, 158 Iowa 306, 138 N.W. 558.
Sections 3534 and 3535 of the Code authorize the serving of original notice by publication, and prescribe the method of such service. Code Section 3536 is as follows:
"When the foregoing provisions have been complied with, the defendant so notified shall be required to appear as if personally served on the day of the last publication within the county in which the petition is filed, proof thereof being made by the affidavit of the publisher or his foreman, and filed before default is taken."
As contended by counsel for appellant, we have repeatedly held that proof of publication in accordance with the requirements of the above section is jurisdictional. It will be observed, however, that the statute requires such proof to be made and filed before default is entered. Section 3323 of the Code provides that sufficient real estate may be sold or mortgaged for the purpose of paying the debts against the estate of a decedent, if the personal property is insufficient therefor. Code Section 3324 provides that, before an order to that effect can be made, all persons interested in the real estate shall be served with notice in the manner prescribed for the commencement of civil actions "unless a different one is prescribed by the judge or court."
Appellants do not claim that a proper notice was not posted, as ordered by the court. It will at once be observed that there is nothing in Title XVII, Chapter 3, of the Code, relating to the settlement of estates, prescribing the kind of return or proof of service to be made of a posted notice. Counsel contend, however, that Section 4681 of the Code requires proof of service to be made by affidavit. This section is as follows:
"The posting up or service of any notice or other paper required by law may be proved by the affidavit of any competent witness attached to a copy of said notice or paper, and made within six months of the time of such posting up."
The purpose and meaning of this section will be better understood if construed in connection with the following sections:
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