Shane v. Peoples

• Decision Date: 22 April 1913
• Citation: 141 N.W. 737,25 N.D. 188
• Parties: SHANE et al. v. PEOPLES.
• Court: North Dakota Supreme Court

25 N.D. 188

141 N.W. 737

SHANE et al.

v.PEOPLES.

Supreme Court of North Dakota.

April 22, 1913.

Syllabus by the Court.

The running of the statute of limitations cannot be raised by demurrer but must be pleaded in the answer. This is the case in North Dakota under section 6770, Rev. Codes 1905, even though the fact is apparent upon the face of the complaint.

To subject the judgment of a county court to collateral attack the absence of jurisdiction must appear on the face of the judgment, and, though the record may be irregular and defective, the judgment, if valid upon its face, is not as a rule subject to collateral attack. It is not sufficient to overcome the presumption in favor of the jurisdiction of the court for the person who seeks to avoid its consequences to merely allege that he had no legal notice of the pendency of the action in which it was rendered. Such person must allege what, if anything, was shown by the record in relation to the issue and service of process therein.

A court, on collateral attack, will be presumed to have done its duty, and this includes the presumption that all parties affected by said judgment and decree were properly before it.

An attempt to have declared void a sale made by the administrator of an estate, and the decree of the county court authorizing and ratifying the same, even though made in the form of an action to quiet title, is a collateral attack upon said sale and said decree.

The proceedings leading up to the sale of real estate by the administrator of the estate of an intestate, under the authorization of the county court, is a proceeding in rem.

Where a petition is filed in a county court by one of the heirs at law, which states that he is the sole and only heir at law, the court in a collateral attack upon such proceeding by one who claims to have been an heir and not to have been made a party to, or cited to appear in, such proceedings, there is a legal presumption that the county court passed upon the question of heirship.

In a collateral attack upon a judgment of a county court and sale thereunder, it is not sufficient to allege that the party seeking to avoid it had not been served with notice or made a party thereto. The allegation should have been that there was not in fact such notice, and the record of the judgment did not show such fact.

The jurisdiction of a county court to administer an estate is conferred by the petition, and if the petition is, on its face, regular and a judgment is entered or a decree rendered in conformity therewith, jurisdiction will be presumed on a collateral attack.

Even where fraud is alleged in the presentment of such a petition, a sale thereunder will not be set aside without an allegation and proof that the purchaser at such sale was a party to such fraud.

Appeal from District Court, Wells County; Burke, Judge.

Action in equity by Nellie Shane and others against H. Peoples. From a judgment for defendant, plaintiffs appeal. Affirmed.

This is an appeal from an order sustaining a demurrer to a complaint and from a judgment dismissing an action. The demurrer not only attacks the complaint for lack of equity but insists that the district court has no jurisdiction of the subject-matter. The action is in form one to quiet title to real estate, and its main purpose is to have set aside a conveyance of land to the defendant and respondent, Peoples, which was made on the 9th day of March, 1900, by the administrator of the estate of William Shane, deceased, under and by virtue of a proceeding which the plaintiffs allege to have been instituted in fraud of their ancestors and without notice to them. The action is brought by the children of two of the heirs at law of the deceased; their parents, in the interim, having also died. The contention is that the administration under which the real estate was sold to the defendant and respondent was procured by one Margaret Shane Dunton, who, it is alleged, fraudulently represented to the court that she was the sister and only heir at law of the deceased, when, as a matter of fact, she was only one of three; the others being John Shane, a brother, and Mary Shane, a sister, and that said John Shane and Mary Shane were not made parties to the proceedings.

Edward P. Kelly and T. F. McCue, both of Carrington, for appellants. Maddux & Rinker, of New Rockford, for respondent.

BRUCE, J. (after stating the facts as above).

[1] There is obviously no merit in the contention of defendant and respondent that the demurrer was properly sustained because the action was barred by the statute of limitations. The running of the statute of limitations cannot be raised by demurrer, even though the fact is apparent upon the face of the complaint. Section 6770, R. C. 1905.

[2] The complaint, however, is clearly vulnerable to the objection that it is lacking in equity. The law seems to be quite well established that the presumption is strongly in favor of the validity of sales of the nature of that in question. 18 Cyc. 814. It is also well established that the existence and regularity of steps in the proceeding, not to establish jurisdiction but sometimes necessary to perfect title in the purchaser, is almost uniformly presumed where the record is silent. 18 Cyc. 815; Moore Realty Co. v. Carr, 61 Or. 34, 120 Pac. 742. A judgment, indeed, of a court of general jurisdiction, not void on its face, is presumed to be regular and valid. Bank v. Ackerman, 16 Cal. App. 55, 116 Pac. 91; 12 End. Pl. & Pr. 216. This rule applies to county courts as well as to district courts. Carter v. Carter, 237 Mo. 624, 141 S. W. 873;Deweese v. Yost, 161 Mo. App. 10, 143 S. W. 72;Hines v. Givens, 29 Tex. Civ. App. 517, 68 S. W. 295;Johnson v. Beazley, 65 Mo. 250, 27 Am. Rep. 276; George v. Norris, 23 Ark. 121; Estate of Davison, 100 Mo. App. 263, 73 S. W. 373;Dutton & Rutherford v. Wright & Vaughn, 38 Tex. Civ. App. 372, 85 S. W. 1025;Price v. Springfield Real Est. Ass'n, 101 Mo. 107, 14 S. W. 57, 20 Am. St. Rep. 595. To subject a judgment to collateral attack, the absence of the jurisdiction of the court entering the judgment must appear on the face of the judgment, and, though the record may be irregular and defective, the judgment, if valid upon its face, is not, as a rule, subject to collateral attack. Bamberger v. Green, 146 Ky. 258, 142 S. W. 384;Moore Realty Co. v. Carr, 61 Or. 34, 120 Pac. 742. It is not sufficient, in order to overcome the presumption in favor of the jurisdiction of the county court in such a case, for the person who seeks to avoid its consequences to merely allege that he had no legal notice of the pendency of the action in which it was rendered. Such person must allege what, if anything, was shown by the record in relation to the issue and service of process therein.

[3] “It is not material,” says the Appellate Court of Indiana in the case of First Nat. Bank of Indianapolis v. Hanna et al., 12 Ind. App. 240, 243, 39 N. E. 1054, 1055, “how erroneous the decree to sell real estate may have been; if the court had jurisdiction of the subject-matter and the parties, it cannot be assailed collaterally. That the court had jurisdiction of the subject-matter is not denied. It being a court of general jurisdiction, it will also be presumed that it had jurisdiction of the person of appellant, and this presumption would hold good until it is overcome by some showing to the contrary. The court will be presumed to have done its duty, and this includes the presumption that all parties affected by said judgment and decree were properly before it and were duly served with process. Where it appears, on the face of the record, that the court had jurisdiction, the judgment cannot be impeached collaterally. * * * If it does not so appear, this fact should be pleaded. It is not sufficient in such case, in order to overcome the presumption in favor of the jurisdiction of the court, to aver that the parties seeking to escape its consequences had no legal notice of the pendency of the action in which it was rendered, but such party must allege what, if anything, is shown by the record in relation to the issue and service of process therein. * * * The reason for the rule just announced is that the record in such matters is conclusive. Were the judgment itself pleaded, and did it show upon its face that the party seeking to avoid it had been served with legal notice, an averment that no such notice had in fact been served would not be sufficient to overcome the recital of notice in the record; and when the record of the judgment is not set forth in the pleading, as it is not in the exception under consideration, every presumption as to what it contains will be indulged in its favor until the contrary is made to appear by direct averment.”

In the case of Cassady v. Miller, 106 Ind. 69, 5 N. E. 713, it was said: “It is nowhere alleged in appellant's complaint that the record of such judgment does not show that Melissa Cassady was a party defendant in the action and judgment; nor do the appellants allege that the record shows that no summons was issued in the action for Melissa Cassady, or that she had not been personally served with summons issued therein, and the summons returned by the sheriff, showing such service the requisite period of time before the rendition of such judgment. Upon the question of notice, the only allegation of the complaint is that she (Melissa Cassady) was not served with process and did not know of the rendition of such judgment nor of its existence until in 1881. This allegation is wholly insufficient, we think, to overcome the legal presumptions in favor of the validity of the judgment.”

Again, in the case of Krug v. Davis, 85 Ind. 309, the court said: “It necessarily follows that besides or instead of denying the fact of service the complaint should have alleged that there was not in fact, and the record of the judgment did not show, a return of service or summons upon the judgment defe...