McGregor v. Jensen

• Decision Date: 15 June 1910
• Parties: JAMES McGREGOR, Appellant, v. SIGNA JENSEN et al., Respondents
• Court: Idaho Supreme Court

109 P. 729

18 Idaho 320

JAMES McGREGOR, Appellant, v. SIGNA JENSEN et al., Respondents

Supreme Court of Idaho

June 15, 1910

PROBATE COURT-REAL ESTATE-ADMINISTRATOR'S SALE OF-CONFIRMATION OF SALE-OBJECTIONS TO CONFIRMATION-APPEAL TO DISTRICT COURT-TRIAL DE NOVO-EVIDENCE-SETTING ASIDE ORDER OF CONFIRMATION-DISPROPORTIONATE BID-ACCEPTANCE OF NEW BID-RIGHTS OF BIDDER.

(Syllabus by the court.)

1. Under the provisions of sec. 5520, Rev. Codes, when an administrator makes a sale of real estate, he must make a return of his proceedings to the probate court, and a hearing upon such return for the confirmation of the sale must be had and notice thereof must be given in compliance with the provisions of said section. Objections may be made to the confirmation of the sale by anyone interested. Upon the hearing the court must examine the return and witnesses in relation to the same, and if the court finds that the proceedings were unfair or the sum bid disproportionate to the value of the property sold, and if it appears that a sum exceeding such bid by at least ten per cent exclusive of the expenses of a new sale may be obtained, the court may vacate the sale and direct another to be had; if an offer of ten per cent more in amount than that named in the return be made to the court in writing by a responsible person, it is then in the discretion of the court to accept such offer and confirm the sale to such person, or to order a new sale.

2. Held, that the phrase "disproportionate to the value," as used in said section 5520, means disproportionate to the value at the time the bid was made.

3. Where objections are made to the confirmation of the sale and on a hearing it appears to the probate court that the sale was fair and that the sum bid was a reasonable and fair value for the property sold, it is the duty of the probate court to confirm the sale.

4. On an appeal from an order confirming a sale, the district court is authorized to try the case anew upon the issues made in the probate court, and if it appears from the evidence adduced on the hearing that the proceedings were fair and the sum bid is not disproportionate to the value of the property sold, it is the duty of the district court to affirm the order of confirmation made by the probate court.

5. Held, that the evidence introduced on the trial in the district court establishes the facts that the proceedings in regard to the sale of the real estate involved were fair and regular, and that the bid offered and accepted by the probate court was not disproportionate to the value of the property at the time said bid was made.

6. Held, that the district court erred in setting aside the order confirming the sale of said real estate and accepting the bid of Jensen.

APPEAL from the District Court of the Sixth Judicial District, for Custer County. Hon. Edward A. Walters, Presiding Judge.

From a judgment setting aside an order for the confirmation of the sale of real estate and refusing to confirm the sale by the district court on an appeal from the probate court, the purchaser at the sale appeals. Reversed.

Reversed and remanded, with instructions. Costs awarded to the appellant.

W. W Adamson, for Appellant.

The district court had no right or authority under the law to accept a new bid for the sale of the property; all that it had jurisdiction to do was to reverse the judgment of the probate court and send back the case with instructions to order a new sale, for the making of a new bid in the district court constituted the framing of a new issue, the making of the finding upon a new issue that was not before the probate court and the entering of a judgment beyond the issues framed in the probate court. (Estate of Skelly, 21 S.D. 424, 113 N.W. 91-93.)

Sec 5520, Rev. Codes, is identical with sec. 1552, Kerr's C C. P., Cal. (In re Leonis' Estate, 138 Cal. 194, 71 P. 171. See, also, Dunn v. Dunn, 137 Cal. 51, 69 P. 847; Allen v. Martin, 61 Miss. 78; Howell v. Mills, 53 N.Y. 322; Lefevre v. Laraway, 22 Barb. 167.)

Milton A. Brown, for Respondents.

"Trial de novo" means "to try anew" or "a second time," that is, to retry the case upon the original papers and upon the same issues as the case was tried in the probate court. (Estate of McVay, 14 Idaho 64, 93 P. 31.)

Upon a proper showing the probate court had power to order the Jensen bid accepted and the property transferred to Mr. Jensen. Is it possible to suppose that the district court while exercising its appellate power and conducting a trial de novo did not have the same power, or at least such power as would authorize the district court to certify such a judgment back to the probate court for execution? (Fisher v. Board, 4 Idaho 381, 39 P. 552; Latah County v. Hasfurther, 12 Idaho 797, 88 P. 433; Gardner v. Blaine Co., 15 Idaho 702, 99 P. 826.)

When the appeal is taken on questions of both law and fact (as in this case), "The procedure seems to be plain, . . . . and thereafter the latter court has exclusive jurisdiction and its judgment is final." (Maxson v. Superior Court, 124 Cal. 468, 57 P. 379.)

The plain intent of the statute is to allow the probate court, or the district court on an appeal, when there has been anything unfair in the proceeding, or it appears that the price bid is disproportionate to the value of the property, and it appears that a bid ten per cent, etc., may be obtained, to order a new sale. (Estate of Griffith, 127 Cal. 543, 59 P. 988; Estate of Reed, 3 Cal.App. 142, 85 P. 155; Griffin v. Warner, 48 Cal. 385.)

SULLIVAN, C. J. Ailshie, J., concurs.

OPINION

SULLIVAN, C. J.

This is an appeal from a judgment of the district court reversing and setting aside an order of the probate court of Custer county, confirming the sale of certain mining claims to the appellant, James McGregor, for the sum of $ 1,675. One feature of this case was before this court at its January, 1909, term. (See In re Estate of Christensen, 15 Idaho 692, 99 P. 829.) That appeal was from the order of the district court dismissing the appeal from the probate court. The case was tried de novo in the district court upon the return of the remittitur from this court. The plaintiff introduced testimony in support of the confirmation of the sale of said mining claims. Signa Jensen, the contestant, offered no testimony in support of her objections to the confirmation of the sale, but Nels C. Jensen, a stranger to the suit up to the date of the trial in the district court, filed a bid of $ 1,900 with the district court for such mining claims and costs of a resale. The district court accepted the bid of Jensen and entered judgment vacating the order confirming the sale to Nels C. Jensen, who was made one of the respondents here, accepted his bid of $ 1,900 for said property, and ordered that said judgment be certified back to the probate court of Custer county. From that judgment this appeal is taken.

Some question was raised on the oral argument about the transcript containing all of the evidence produced on the trial in the district court. That matter has been fully settled by stipulation of respective counsel, to the effect that the record contains a full, true and correct statement of all the evidence introduced before the district court at the trial or hearing of said cause.

Two errors are assigned: The first is that the court erred in accepting the bid of said Jensen, and the second, that the court erred in making the order confirming the sale to Jensen and vacating and setting aside the order of the probate court confirming the sale to McGregor.

On the former appeal, this court held that the return to the order of sale and the objections thereto constituted the issues to be tried by the district court. In Re Estate of McVay, 14 Idaho 56, 93 P. 28, this court held that the district court had appellate jurisdiction from the probate court in probate matters to retry the same issues at law and fact as were heard and determined by the probate court. The issues in the case at bar were made by the return to the order...