Pattison v. Hogston

• Decision Date: 07 July 1927
• Docket Number: No. 12807.,12807.
• Citation: 90 Ind.App. 59,157 N.E. 450
• Parties: PATTISON et al. v. HOGSTON et al.
• Court: Indiana Appellate Court

90 Ind.App. 59

157 N.E. 450

PATTISON et al.

v.HOGSTON et al.

No. 12807.

Appellate Court of Indiana, in Banc.

July 7, 1927.

Appeal from Grant Circuit Court; J. F. Charles, Judge.

Suit by Mary A. Pattison and others against Alfred Hogston, administrator of the estate of James S. Hogston, and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

John A. Kersey, of Marion, and Eichhorn, Gordon & Edris, of Bluffton, for appellants.

S. L. Stricler, A. G. Messick, and Marshall Williams, all of Marion, for appellees.

McMAHAN, J.

This is an action by Mary A. Pattison, Eva M. Cabe, and James F. Hogston to enjoin the administrator of the estate of James S. Hogston, from selling certain real estate pursuant to an order of sale theretofore made by the Grant circuit court.

James S. Hogston died intestate in 1921, the owner of certain real estate in Grant county. The Grant Trust & Savings Company, having been appointed administrator of his estate, filed its petition to sell the said real estate for the purpose of paying debts. The decedent left surviving as his only heirs, Mary A. Pattison, Eva M. Cabe, James F. Hogston, Alfred Hogston, and Richard Hogston, each of whom became the owner of an undivided one-fifth interest in said land. The above-named heirs of the decedent were made defendants in the proceedings to sell. The administrator in its petition for sale alleged it was necessary to sell the real estate for the purpose of paying certain designated debts which were liens of the real estate. Among the debts for the payment of which the administrator asked that the real estate be sold were five judgments, one in favor of Emma Jaqua, one in favor of Emma Frelof Jaqua, one in favor of Frelof Jaqua, and two in favor of Richard Hogston.

[1] The five heirs of the decedent were made defendants in the proceeding of the administrator to sell. None of the lienholders were made defendants. Mary Pattison, Eva M. Cabe, and James F. Hogston appeared and filed a “partial” answer. They also filed a cross-complaint wherein they attempted to attack the validity of the above-mentioned judgment. The defendants to this cross-complaint were the persons in whose favor the judgments had been rendered, the administrator not being a party thereto. The cross-complainants filed an affidavit for change of judge because of the bias and prejudice of the regular judge, and a special judge was appointed and assumed jurisdiction and heard the petition to sell and the issue presented by the cross-complaint. There was an interlocutory decree ordering the real estate sold subject to the several liens. There was also a judgment against the cross-complainants on their cross-complaint. From that judgment the cross-complainants appealed. The only question raised in that appeal related to the judgment on the cross-complaint, wherein it was adjudged that the judgments mentioned in the cross-complaint were valid. No question was raised in that appeal concerning the order of sale. That judgment was affirmed, and the validity of the five judgments sustained. See Pattison v. Grant Trust & Savings Co., 195 Ind. 313, 144 N. E. 26. After the affirmance of that judgment the administrator filed its petition to modify the order of sale so that the land could be sold free of the liens instead of being sold subject thereto. With this petition the administrator filed an appraisement of the real estate and the written consent of the several lienholders consenting that the court might fix the amount and priority of their liens and that their respective liens be transferred from the sale of the real estate. Appellants appeared to this application and filed written objections to the modification of the order of sale, on the ground that the original order of sale was void because no appraisement of the real estate had been made at or before the making of such order, and for the further reason that the court had no authority to allow an appraisement to be filed after the affirmance of the judgment, or on the appearance and consent of the lienholders, to order the land sold free of liens. No objection was made to the regular judge of the court hearing the application of the administrator for a modification of the order of sale, but the same was submitted to the court, the regular judge presiding, and the order of sale modified. That order is in full force and effect, unappealed from and unreversed. This is a collateral attack on the order of sale as modified and must fail unless that order is absolutely void.

[2] At this point we call attention to the fact that the record is silent as to whether an inventory and appraisement of the real estate was made and filed on or before the court made the original order of sale. If the filing of an appraisement was necessary, as appellants contend, in order to give the court jurisdiction to make the order of sale, we ought in the absence of any evidence presume that all the jurisdictional steps were taken and that the court had jurisdiction to make the order. The fact that an appraisement was filed with the petition to modify will not overthrow the presumption that the court had jurisdiction when it made the original order.

[3] Where an administrator asks to have land sold subject to liens, the holders of the liens need not be made defendants. If such an order has been made and the administrator thereafter discovers that it would be advantageous to have the order modified so that the land can be sold free from liens, a petition can be filed for that purpose. If the lienholders appear and file their consent as was done in the instant case, they need not be made defendants in the original petition or in the petition to modify.

In Hall v. Price, Adm'r, 141 Ind. 576, 40 N. E. 1084, an administrator procured an order to sell real estate subject to liens. At a subsequent term the court on petition of administrator ordered the sale to be made free of liens. Later one defendant who had not been served with process appeared and filed answer asking that the court order the land sold as asked by the administrator, and asked the court to fix the priority of the liens. It was there contended that the second order was invalid because of the first order of sale. In disposing of this contention the court said:

“The first order of sale, procured by appellee, was not a final judgment, but was an interlocutory order, and was subject to be vacated, set aside, modified or changed on petition or motion, until the real estate was sold under such order, the sale confirmed, and until the end of the term of court at which such sale was confirmed, during all of which time the proceedings were in fieri.”

[4] Is the order of the court modifying the order of sale void or merely voidable because it was made by the regular judge and not by a special judge? The issues presented by the original application of the administrator for the sale of the real estate and the cross-complaint filed thereto were, not whether the real estate should be sold for the payment of debts, other than the five judgments, but whether any real estate should be sold for the payment of the five judgments the validity of which appellants challenged by their partial answer and cross-complaint. The answer and cross-complaint of appellants neither raised nor attempted to raise any question other than the validity of the five judgments and the necessity of selling any real estate to pay them. Indeed, appellants in their answer asked that so much of the real estate be sold as would be necessary to satisfy the other debts of the estates, and in open court agreed that if the judgments mentioned should be finally held to be valid and substituting judgments, no further opposition to their payment would be made in any form, either by action to review or to enjoin enforcement or otherwise. This was the situation when the administrator filed its petition to modify the order of sale. Appellants herein by their answer had conceded the real estate should be sold to pay debts and had asked that enough of it be sold to pay all debts except the five judgments, and had agreed in open court that if those judgments should be held valid no further opposition to their payment would be made by appellants.

When the petition to modify was filed appellants appeared and filed written objections challenging the right of the court to make the order for the reasons hereinbefore stated. No objection was made to the regular judge hearing the petition to modify. Appellants made no claim that the property should be sold subject to the liens in accordance with the original order of the court, and we think it may be fairly inferred from the record that appellants by failing to object to the regular judge acting in that matter consented to his acting. The regular judge was not disqualified because of interest or relationship. The court, as distinguished from the judge, had jurisdiction of the subject-matter and of the parties, and, appellants having raised no question below concerning the right of the regular judge to act, they could not have presented such question for the first time on appeal by the claim that the regular judge had no “jurisdiction” of the matter, because a change of judge had been taken in the proceedings prior to the hearing on the petition to sell and on the cross-complaint, asking that the five judgments be declared void. If appellants had objected to the regular judge acting and this was an appeal in that case and the act of the court in overruling the objection had been properly presented in this court we would be required to pass on the correctness of such ruling.

In Carr v. Duhme, 167 Ind. 70, 78 N. E. 322, 10 Ann. Cas. 697, it was held that where the disqualification of the judge was disclosed by the record and known to the parties, and in the absence of a statute relating to the disqualification of judges and prohibiting them from acting, their actions are governed by...