Shawnee Nat. Bank v. Van Zant

• Decision Date: 11 October 1921
• Docket Number: 11088.
• Citation: 202 P. 285,84 Okla. 107,26 A.L.R. 1349,1921 OK 355
• Parties: SHAWNEE NAT. BANK v. VAN ZANT.
• Court: Oklahoma Supreme Court

202 P. 285

84 Okla. 107, 26 A.L.R. 1349, 1921 OK 355

SHAWNEE NAT. BANK v. VAN ZANT.

No. 11088.

Supreme Court of Oklahoma

October 11, 1921

Rehearing Denied Dec. 13, 1921.

Syllabus by the Court.

A district judge, who has been assigned by order of the Chief Justice to hold court in a county outside of the district in which he is elected, has no authority, after the expiration of the time fixed in the order assigning him to hold court in said county, to grant an extension of time in which to prepare and serve case-made, in a case tried before him while lawfully holding court in such county, and although the regular judge in said district has certified his disqualifications to try said case on the merits, he may grant an extension of time in which to prepare and serve case-made.

Where a person takes charge of the property of the deceased, and proceeds to administer upon the same, he becomes what is termed an "executor de son tort," and if thereafter he is appointed administrator, the general rule is, and especially where said party is an heir, that the subsequent grant of letters testamentary relate back to the death of the intestate, and makes valid the acts of the "executor de son tort."

The general rule is that grant of letters of administration relates back to the date of the death of intestate, and legalizes all intermediate acts of the administrator, and such administrator cannot by suit, in the absence of fraud avoid acts done by him, or recover property transferred by him after such death, and before his appointment, nor, if he has received the purchase price, thereafter recover the value of said property transferred by him before such appointment.

In an action by an administrator to recover double the value of certain property alienated by defendant as provided in section 6324, R. L. 1910, when the evidence discloses that the property was delivered to the defendant by the administrator before being appointed, and defendant sold the property and delivered the proceeds to the plaintiff, which was used by her in the payment of debts of the deceased held, error to refuse a requested instruction to the effect that the defendant was entitled to plead as an offset the amount of such proceeds used in paying the legitimate debts against said estate.

Quære Whether an executor de son tort, who takes charge of an estate and delivers the property to a third person for the purpose of sale, and the third party sells such property and delivers the proceeds to the executor de son tort, who in turn applies the money to the payment of debts against said estate, whether said acts constituted an embezzlement or alienation of the property within the meaning of section 6324, R. L. 1910, is not decided.

Under the law of this state, the administrator is entitled to possession of the personal property from the date of the death of the deceased until it is disposed of in the course of administration.

In an action by an administrator against a bank where it is alleged that the plaintiff prior to the time of being appointed administratrix received $12,000 life insurance in her own name and turned the same over to the bank with the agreement that the bank should pay the secured debts against the estate out of said funds, and the evidence disclosed that said funds were deposited to the credit of the plaintiff, and she issued checks payable to third parties in payment of claims against said estate, and paid certain debts that were not secured, held, the bank would not be liable for unsecured debts paid by plaintiff by check upon the bank to third persons.

The surviving wife may mortgage her interest in the homestead, although the mortgagee or purchaser at the mortgage sale would have no right to possession of any part of the homestead during the minority of any of the children.

Appeal from District Court, Pottawatomie County; James I. Phelps, Judge.

Action by Sarah F. Van Zant, administratrix of the estate of R. E. L. Van Zant, deceased, against the Shawnee National Bank. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

The surviving wife may mortgage her interest in the homestead, although the mortgagee or purchaser at the mortgage sale would have no right to possession of any part of the homestead during the minority of any of the children.

Abernathy & Howell, of Shawnee, for plaintiff in error.

Goode & Dierker, of Shawnee, for defendant in error.

McNEILL J.

This is an appeal by the Shawnee National Bank from a judgment rendered against it in the district court of Pottawatomie county in favor of Sarah F. Van Zant, administrator of the estate of R. E. L. Van Zant, deceased.

The defendant in error filed a motion to dismiss the appeal for the reason the regular judge of the tenth judicial district had certified his disqualifications to try the case upon its merits, and James I. Phelps, one of the regular judges of the Thirteenth judicial district, was assigned to hold court in said district, and tried the above-entitled case, and at the time of overruling the motion for new trial extended the time in which to make and serve case-made. The case-made was not prepared and served within the time allowed by the trial judge, and an application was made to the regular judge for an extension of time in which to serve the case-made, and several extensions were granted by the regular judge, and the case-made served within the extension made by the regular judge.

This court overruled the motion to dismiss the appeal without writing an opinion. Defendant in error made application to refile the motion to dismiss, and the same was again considered by this court and denied, without writing an opinion. Defendant in error again presents the motion to dismiss the appeal for the reason the order of extension made by the regular judge to make and serve a case-made was a nullity, as said judge was disqualified in the case, and had so certified his disqualifications. This court in the case of Rogers, County Treasurer, v. Bass & Harbour, 47 Okl. 786, 150 P. 706, passed upon this identical question. In that case, under almost identically the same circumstances, this court overruled the motion to dismiss. The opinion was rendered in July, 1915, and the same has been recognized by the bench and bar of this state, as the law applicable in cases of that kind, and has been consistently followed by this court since said date. We do not feel that the opinion should be disturbed at this time.

Counsel for defendant in error insists that the case of Cain v. King, 49 Okl. 596, 153 P. 1133, overruled the case of Rogers v. Bass & Harbour, supra. In this counsel is in error, and a reading of the facts in the case disclosed that it does not overrule the case, but supports the rule announced in the case of Rogers v. Bass & Harbour. The record in the case of Cain v. King discloses the case was pending in the county court, and was tried before a judge pro tempore or special judge. Article 7, § 12, of the Constitution provides for the election of a judge pro tempore in the county court to try the case when the regular judge is disqualified. The judge pro tempore tried the case, and on August 21st rendered judgment and granted an extension of time of 40 days in which to prepare and serve case-made and 10 days to suggest amendments, the same to be signed and settled on 5 days' notice. The case-made was not prepared and served within said time, but within the time, to wit, on September 26, 1913, the regular county judge extended the time to make and serve case-made, to and exclusive of October 15, 1913, and the case-made was served October 11, 1913, and was signed and settled November 12, 1913. The defendant in error filed a motion to dismiss the appeal for the reason the same was signed and settled after the time allowed in the original order, and that the judge pro tempore after said date was without jurisdiction to sign and settle the case-made. It was contended that the office of the judge pro tempore expired 15 days after October 15, 10 days of which was granted to defendant in error to suggest amendments and 5 days for plaintiff in error to give notice of signing and settling, which would make the time expire October 31, 1913, and, if not signed and settled on that date, the court was without jurisdiction. The case was not signed and settled until November 12, 1913, and in support of the motion to dismiss the parties relied upon the case of City of Shawnee v. State Pub. Co., 33 Okl. 363, 125 P. 462, 42 L. R. A. (N. S.) 619, and cases following that decision, where this court had announced the rule as follows:

"Where no time has been fixed either by order of court or by notice given by the parties within the time for serving a case and suggesting amendments thereto for settling a case, the authority or term of a judge pro tempore ceases upon the expiration of the time fixed for suggesting amendments, and a case-made settled by him after that time is a nullity."

That was the only question before the court in the case of Cain v. King, supra; the former holdings of this court on that question were overruled. The rule announced in the case of Cain v. King, stated in the syllabus, was as follows:

"A judge pro tempore may, in a case tried before him, at any time within six months from the date of the judgment appealed from, sign and settle same where served within the time fixed by statute or any lawful order of extension."

This authorized the judge pro tempore to sign and settle the case-made any time within six months after the judgment provided, however, of course, that the case-made was served within the time fixed by the order of the judge pro tempore who tried the case, or the extensions granted by the regular...