Sorensen v. Sorensen

• Court: Supreme Court of Nebraska
• Writing for the Court: ALBERT, C.
• Citation: 98 N.W. 837,68 Neb. 490
• Parties: THOMAS SORENSEN ET AL. v. ALFRED HANS SORENSEN
• Decision Date: 02 March 1904

98 N.W. 837

68 Neb. 490

THOMAS SORENSEN ET AL.
v.
ALFRED HANS SORENSEN

Supreme Court of Nebraska

March 2, 1904

Reversed.

ALBERT, C. GLANVILLE and BARNES, CC., concur.

OPINION

[68 Neb. 491] ALBERT, C.

On the 3d day of February, 1895, Hans C. Sorensen died intestate, leaving an estate in Valley county, where he resided at the time of his death. Some of his collateral kin filed a petition in the county court of that county for letters of administration, alleging that the intestate had left neither widow nor issue, and that they were his next of kin and heirs at law. One claiming to be his widow appeared in the proceeding, and claimed the right to nominate an administrator of his estate. From the judgment of the county court on that branch of the case an appeal was taken to the district court, where judgment was given in favor of the party claiming to be the widow of the intestate. An opinion of this court, reversing the judgment of the district court, is reported under the present title in 56 Neb. 729.

On a second trial in the district court, the court found that the party claiming to be the widow had never been married to the intestate, and gave judgment denying her right to nominate an administrator, and granting administration on the petition of the collateral kin. No appeal was taken from this judgment, and it is in full force and effect.

Afterward, two brothers, and the children of a deceased brother and sister of the intestate, filed a petition in the county court for a distribution of the assets of the estate, alleging their relationship to the intestate, and that they were his only heirs at law. Thereafter, one Alfred Hans Sorensen, by his guardian, filed an answer and cross-petition, wherein the relationship of the parties as alleged in the petition for distribution was admitted, and all the [68 Neb. 492] other [98 N.W. 838] allegations thereof denied. He alleged, as grounds for affirmative relief, that on the 16th day of October, 1894, the intestate had married one Ellen Ferguson (the party who claimed as widow in the former proceeding) and that he is the issue of said marriage, and the son and heir at law of the intestate. He also prayed for a decree of distribution.

To the affirmative matters alleged in the answer and cross-petition, the petitioners interposed a general denial. They also pleaded the judgment rendered in the proceedings for the appointment of an administrator as an estoppel on the question of the alleged marriage.

A trial was had, which resulted in a judgment in favor of the cross-petitioner. An appeal was taken to the district court, where the petitioners filed new pleadings, which were stricken from the files, and the cause set down for trial on the pleadings filed in the county court. A trial was had, which also resulted in a finding and judgment for the cross-petitioner. The petitioners brought the case here on error, and an opinion, reversing the judgment of the district court, was filed therein, and is reported ante, p. 483; a rehearing was allowed, and the case is now before the court for the second time.

The recommendation in the former opinion for the reversal of the judgment, is based on the ruling of the trial court permitting the defendant in error to open and close. The opinion contains an extended discussion of the principles governing the right to open and close, but it is now thought that the discussion is not altogether pertinent to the question as presented by the record in this case. The proceeding is in rem, and all persons interested in the estate are parties. Such proceedings ordinarily are binding, not only upon those actually before the court, but on all the world. It is obvious, therefore, that those actually before the court may not, by their pleadings, or otherwise, bind those not before it, nor dispense with the proof of any of the ultimate facts essential to a decree of distribution. Each party must rely on the strength of his own case, and [68 Neb. 493] not on the weakness of the opposition. Hence had no evidence been given, the court would not have been warranted in entering a decree of distribution. In other words, both parties must have failed. That being true, neither the statutory provision to the effect that the party who would be defeated were no evidence given on either side is entitled to open and close, nor the ancient rule, of which it is declaratory, applies to cases of this character. With that provision out of the way, neither party had the absolute right to open and close. Both asked the distribution of the estate, and each claimed the whole, to the exclusion of the other and of all other persons. The question before the trial court was not, which of the parties actually before it was entitled to a decree, but whether either of them was, and, so far as the right to open and close is concerned, they were on equal footing. They occupied a position analogous to that of rival claimants for the same fund, who have been brought before a court of equity by a bill of interpleader, requiring them to interplead for the fund, in order that their respective rights may be ascertained and determined and the plaintiff exonerated. As to the right to open and close in such cases, Mr. Thompson, in his work on Trials, section 242, says: "It is supposed that such a case must yield to the sound discretion of the court." See, also, Loudon v. Coleman, 62 Ga. 146. Whether such discretion is absolute, is a question that does not arise in this case, because there is nothing in the record tending to show that it was abused. We are satisfied that the conclusion reached on the former hearing upon this point is erroneous.

It will be remembered that the defendant in error claims as heir at law, on the ground that he is the issue of a marriage between his mother and the intestate. The plaintiffs in error contend that he is concluded on the question of a marriage between his alleged parents by the judgment in the proceeding had for the appointment of an administrator, wherein the court found that the mother had never been the wife of the intestate. In support of this contention [68 Neb. 494] it is argued, as upon the former hearing, that the proceeding for the appointment of an administrator was in rem, and all the world, including the defendant in error, were parties, and are concluded by the matters litigated and judicially determined in such proceeding. That the proceeding was in rem, and that all the world were parties thereto, may be conceded. It will also be conceded, that, ordinarily, a judgment in rem, rendered by a court of competent jurisdiction, is binding on all persons, and is not open to collateral attack. But it does not necessarily follow that the whole world are bound by every matter litigated and judicially determined in the proceeding of which such judgment is the product. The principal relief sought in a proceeding in rem, is usually an adjudication upon the status of some person or thing, and the judgment, ipso facto, renders the status of such person or thing what it declares it to be. Woodruff v. Taylor, 20 Vt. 65. From the very nature and purpose of such judgment, it is essential that it be conclusive and binding on all persons. But in addition to the principal relief sought in a proceeding in rem, in which, in a general way, all persons may be said to be interested, there is also commonly involved some personal right pertaining to some particular person or...