Peters v. McKay

Decision Date14 November 1951
Citation238 P.2d 225,195 Or. 412
PartiesPETERS et al. v. McKAY et al.
CourtOregon Supreme Court

Peter A. Schwabe, of Portland, argued the cause for appellants. On the brief were Francis E. Sturgis, of Hillsboro, and Haas & Schwabe, of Portland.

Cecil H. Quesseth, Asst. Atty. Gen., argued the cause for respondents. With him on the brief was George Neuner, Atty. Gen.

BRAND, Chief Justice.

The petitioners, as the Dutch heirs of Herman Trebas, deceased, seek a refund and distribution to them in equal shares of the net proceeds of the decedent's estate which was turned over by the administrator to the State of Oregon as an escheat. The defendants, acting as the State Land Board, moved to quash the service of the petition. The motion was allowed and the petitioners appeal.

The facts alleged and material to the decision are as follows: Petitioners are first cousins of Herman Trebas, deceased, and his heirs at law. Herman Trebas was born in Germany and died in Beaverton, Oregon, 22 July 1928. The petitioners were born and live in Holland and are citizens of that country. Their ages are stated. The estate of Herman Trebas was administered in Washington County, Oregon. The administrator filed his final account on 12 January 1932 and on 15 February 1932 the county court of Washington County ordered the administrator to pay to the defendants, as the State Land Board, the net clear proceeds of the estate, consisting of $8,232.76. The order was based upon a finding 'that the administrator had been unable to find whether there were any heirs of said decedent and that said decedent left no known heirs.' The money was paid to the State Treasurer on behalf of the State Land Board on 14 April 1932. The petitioners had no knowledge or notice of the administration proceedings and no knowledge of the escheat proceedings and did not learn of the death of the decedent 'for a long time after the entry of said order escheating said estate.' On 1 July 1946 each of the petitioners verified and filed a joint petition for refund of the escheated estate. It is the sufficiency of this petition which is now in issue.

In addition to the facts above stated, the petition of July 1946 also alleges the filing on 8 April 1942 of a petition by the same parties seeking the same relief, which petition 'by this reference is incorporated herein and made a part of this present petition', and which, with the exception noted, is substantially identical to the one now before the Court. The first petition contained one allegation not found in the second one, as follows: 'That ten years have not elapsed since the payment of the proceeds of this escheated estate by the administrator thereof to the State of Oregon, which payment was made on April 14th, 1932.' It will be observed that the quoted allegation was true as of the date of the first petition, for ten years had not then elapsed. In place of the allegation that ten years had not elapsed, the pending petition substitutes the following:

'By reason of World War II and the invasion and capture of the Kingdom of The Netherlands by Germany, all means of communication and postal and mail deliveries were cancelled between The Netherlands and the United States as the United States itself was at war with Germany and as The Netherlands was also at war with Germany and was an enemy occupied country, and therefore no communication by or with these plaintiffs and their agents or attorneys in the United States was possible; for the reasons herein stated these petitioners' petition was verified for and on their behalf by Geo. Powell, the duly appointed and acting Vice Consul of the Kingdom of The Netherlands with jurisdiction of the State of Oregon.

* * *

* * *

'That your petitioners herein as soon as advised of these facts and at the earliest possible date after the restoration of postal facilities and without any unreasonable delay, and in compliance with the decision of the Court in said case numbered 12394 are now therefore hereby filing this said petition, verified by each personally and in person.'

The petition further alleges: 'That your petitioners are citizens and inhabitants of the Kingdom of Holland, also known as The Netherlands, and that there exists a reciprocal right upon the part of citizens of the United States to take or inherit property within the Kingdom of Holland/The Netherlands, and to recover, by payment to them within the United States, funds originating from estates of persons dying within said Kingdom.'

The Oregon statute authorizing suit for refund of an escheated estate provides that within ten years after payment to the State Land Board 'a person * * * may file a verified petition * * * showing his claim or right to the property escheated * * *.' O.C.L.A. § 21-113. The complaint alleges that the first petition of 1942 was filed within the ten years but was verified only by the attorney in fact of the plaintiffs and by the Vice Consul of the Kingdom of The Netherlands. Defendants filed a motion to quash the service of said first petition, which motion was allowed because the claimants had not personally verified it. No appeal was taken from the order quashing the 1942 petition, and of course, the correctness of that order cannot be questioned here. We take it that the recital in the 1946 petition concerning the petition of 1942, and its disposition, is not made for the purpose of challenging the earlier order. Those recitals do, however, show that the pending issue is wholly different from the one presented on the first petition and that no question of res judicata is involved. The plaintiffs have each personally verified the pending petition. Notwithstanding the difference in the issue presented, the defendants followed the same procedure as before and moved to quash the service of the 1946 petition. The defendants' motion was supported upon three grounds as follows:

'1. That neither the State of Oregon nor said Governor, Secretary of State, and State Treasurer, as constituting the State Land Board, nor the State Land Board, can be sued without its or their consent, and that neither the State of Oregon nor the State Land Board has consented to be sued in the manner adopted or followed in said purported petition or followed by said purported petitioners herein;

'2. That the cause referred to in said purported petition was heretofore judicially determined by the above entitled court; and

'3. That more than 10 years have elapsed since the making of the judgment of escheat referred to by said purported petition.'

The court quashed the service of the petition upon the ground that 'a petition in the form required by the statute was not filed within the ten-year period * * *.'

Before discussing the important questions presented, it is proper to observe that there are obvious defects in the pleading and procedure employed by both parties. Some of the allegations of the petition are lacking in definiteness. The method of incorporating the proceedings on the petition of April 1942 was perhaps irregular. On the other hand, the motion to quash, which was filed by the defendants, was not the proper way by which to test the definiteness or sufficiency of the petition. According to the established practice, the objection that the state has not consented to be sued is raised by demurrer to the petition, as shown by the following cases involving suits to recover escheated property: Haley v. Sprague, 166 Or. 320, 111 P.2d 1031; Engle v. State Land Board, 164 Or. 109, 99 P.2d 1018; and see United Contracting Co. v. Duby, 134 Or. 1, 292 P. 309. Notwithstanding these irregularities we are disposed to consider the case on its merits. The ruling of the trial court on the motion to quash gave to the plaintiffs no notice of formal defects with the usual opportunity of correcting them, which is accorded after a ruling on a motion to make more definite or on a demurrer. Again, as will appear, the allegations of the petition are amplified by facts judicially known to this court which need not be specially pleaded. MacLeod v. United States, 229 U.S. 416, 33 S.Ct. 955, 57 L.Ed. 1260; State ex rel. Bowles v. Olson, 175 Or. 98, 151 P.2d 723; Howe v. Kern, 63 Or. 487, 125 P. 834, 128 P. 818; Parkersville Drainage Dist. v. Wattier, 48 Or. 332, 86 P. 775; Peterson v. Standard Oil Co., 55 Or. 511, 106 P. 337; 41 Am.Jur., Pleading, § 9, p. 293. In Young v. State, 36 Or. 417, 59 P. 812, 60 P. 711, 47 L.R.A. 548, it was held that the strict rules of pleading do not apply to statutory proceedings to recover escheated property. Under the conditions here present, the petition must be construed most favorably to the plaintiffs. McGilchrist v. Fiedler, 155 Or. 616, 65 P.2d 388; Keegan v. Lenzie, 171 Or. 194, 135 P.2d 717. Counsel for the plaintiffs stated to this court that he had not raised the question as to the propriety of the motion to quash. Both parties agree that 'The sole question', as stated by defendants, 'is whether or not the Circuit Court erred in granting respondents' motion to quash service of the second petition on the ground that the statutory period prescribed by law for recovery of escheated property had run.'

The petition of July 1946 was filed more than ten years after the payment of the funds to the State Treasurer. The statute provides: '* * * within 10 years after payment of the proceeds of escheated personal property to the state land board, a person not a party or privy to such proceeding, nor having actual knowledge of the making of such judgment or order or of such payment to the state land board, may file a verified petition in the circuit court of the county where such information was filed, showing his claim or right to the property escheated or the proceeds thereof. Such petition shall be verified by the oath of the petitioner, whose age and place of residence shall be stated therein. It also shall state in substance that the petitioner lawfully is...

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