Stack v. Royce

• Decision Date: 11 June 1892
• Citation: Stack v. Royce, 34 Neb. 833, 52 N.W. 675 (Neb. 1892)
• Parties: HANNAH STACK v. WILLIAM ROYCE
• Court: Nebraska Supreme Court

52 N.W. 675

34 Neb. 833

HANNAH STACK v. WILLIAM ROYCE

Supreme Court of Nebraska

June 11, 1892

ERROR to the district court for Nuckolls county. Tried below before MORRIS, J.

REVERSED AND REMANDED.

Batty Casto & Dungan, for plaintiff in error:

The probate court of the county in which the administrator was appointed has "exclusive original jurisdiction" (Seward v. Didier, 16 Neb. 58; Maxwell, Pl. & Pr 87; Seymour v. Ricketts, 21 Neb. 240), and the county court of Cass county, in which the lands were located would have no jurisdiction at all, and any proceedings had before it for a sale of the land located in said county would be utterly void. (Calloway v. Kirkland, 50 Ala. 401; Gordon v. Howell, 35 Ark. 381; Woods v. Monroe, 17 Mich. 238.) Unless an administrator proceed in the particular court, and by the mode pointed out in the statute, there will be such a want of jurisdiction as to render the sale void. (Wright v. Edwards, 10 Ore., 298; In re Mahoney, 34 Hun [N. Y.], 501; Hordmen v. Short, 18 Ill. 61; Spencer v. Jennings, 114 Pa. 618; Lynch v. Hickey, 13 Ill.App. 139.) The sureties did not qualify before the judge or the clerk, but before a notary public and the attorney of record of the administrator, and the sale upon that ground should be avoided. (Wood v. Monroe, 17 Mich. 238.) The court had no jurisdiction over the person of Hannah Stack, and consequently the proceedings could not affect her rights. (Jenkins v. Young, 35 Hun [N. Y.], 569; Underwood v. Underwood, 22 W.Va. 203.)

L. T. Stocking, contra:

Jurisdiction is power "to hear and determine" a particular cause or matter in controversy. (Smiley v. Sampson, 1 Neb. 56; Sheldon's Lessee v. Newton, 3 Ohio St. 494; Gregnon's Lessee v. Astor, 2 HOW [U. S.], 338.) The meaning of the word court in sec. 68, ch. 23, Comp. Stats., is to be determined by reference to other sections of the same chapter where the term "judge" is used interchangeably. (Davis v. Hayden, 3 Scam. [Ill.], 35; Zarresseller v. People, 17 Ill. 101; Stribling v. Prettyman, 57 Id., 371; Biggs v. Clapp, 74 Id., 335.) In the light of Webster's definition of the word "court" and of the other parts of this statute if a sufficient petition should be "presented" to a judge of the district court anywhere in his district the matter would be coram judice; the judge could make a valid order to show cause at chambers anywhere in his district; and at that time and place, if said order is complied with, the judge can make a valid order of sale. (Stewart v. Daggy, 13 Neb. 290; Dietrichs v. R. Co., 14 Id., 356.) The order need not recite the names of the persons interested. (Stow v. Kimball, 28 Ill. 93; Gregnon's Lessee v. Astor, 2 HOW [U. S.], 338; McClay v. Foxworthy, 18 Neb. 295; Sheldon's Lessees v. Newton, 3 Ohio St. 504.) Confirmation cures all irregularities. (Wilcox v. Raben, 24 Neb. 368; Saxon v. Cain, 19 Id., 488; Neligh v. Keene, 16 Id., 407.) A purchaser is not bound to look beyond the decree. (Gregnon's Lessee v. Astor, 2 HOW [U. S.], 340.) Granting the license cannot be attacked collaterally. (Franklin v. Kelley, 2 Neb. 112; Gregnon's Lessee v. Astor, 2 HOW [U. S.], 339; Phillips v. Bridge, 11 Mass. 227; U. S. v. Arredondo, 6 Pet. [U. S.], 729; McPherson v. Cunliff, 11 S. & R. [Pa.], 429.)

NORVAL, J. POST, J., concurring. MAXWELL, CH. J., dissenting.

OPINION

NORVAL, J.

This is an action of ejectment brought by the plaintiff in error, to recover the possession of the northwest quarter of section 11, in township 4, range 8 west, in Nuckolls county.

There was a trial to a jury, who, under the direction of the court, returned a verdict for the defendant. Plaintiff presented a motion for a new trial, which was overruled, and judgment entered on the verdict.

The plaintiff claims title to, and the right of possession of, the real estate as the sole devisee under the last will and testament of James Stack, deceased. The defendant is the tenant of one Mary B. Snyder, who claims title under a deed from the administrator of the estate of said James Stack, deceased, and other mesne conveyances in her chain of title.

On the 8th day of May, 1878, one James Stack, then a resident of Clay county, died at Harvard, in said county, seized of the real estate in litigation. He left a will bequeathing all his property to his wife, the plaintiff herein. On the 15th day of June, 1878, the will was admitted to probate by the county court of Clay county, and the plaintiff was appointed as sole executrix. Subsequently she resigned as executrix, and on the 2d day of February, 1880, one William Hammond was appointed by the county court of Clay county administrator of said estate with the will annexed.

Upon the trial the defendant introduced in evidence, over the objection and exception of plaintiff, the petition of the administrator of the estate of said James Stack for license to sell the real estate in controversy, the order of the district judge fixing the time and place of hearing the same, the license issued to the administrator, report of sale, order of confirmation, and the deed of the administrator to the purchaser. Plaintiff now complains of the admission of said testimony, and of the instruction of the court to the jury to return a verdict for the defendant.

It appears from an inspection of the petition of the administrator for license, and the proceedings had thereunder, that on the 17th day of May, 1880, at Clay Center, the Hon. A. J. Weaver, the judge of the first judicial district, which included the county of Clay, on the petition of said administrator for license to sell the real estate above described, to pay the debts of said estate and charges of administration, made an order that all persons interested in said estate appear before him at his chambers, at Falls City, on the 24th day of July, 1880, to show cause why a license should not be granted to the administrator to sell said real estate. The petition and the order to show cause are entitled in the district court of Nuckolls county, and on the 20th day of May, 1880, were filed in the office of the clerk of said court. Hearing was had at the time and place stated in the order to show cause, and thereupon Judge Weaver issued a license to said Hammond to sell said real estate, on his giving a bond in the sum of $ 1,000, to be approved by the clerk of the district court of Nuckolls county. By the license the administrator was ordered to make return of his doings thereunder to the district court of said county, and the clerk of said court was directed to copy the license into his journal, file the original in his office, and furnish the administrator with a certified copy of the same. All this was done as directed, the license being filed on September 11, 1880. The bond of the administrator was filed and approved by said clerk on September 17th. On the day following, previous notice of the time and place of sale having been given, the land was sold, Mary A. Colvard being named in the report of sale as the purchaser. On the 7th day of November, 1881, the administrator made and filed his report of sale in the office of the clerk of the district court of Nuckolls county. The next day said court approved and confirmed the sale, and ordered the administrator to execute and deliver a deed to the purchaser. Subsequently, on the 2d day of May, 1883, the administrator made his deed, in which S. C. Colvard is named as grantee.

It appears that a mistake was made by the administrator in his report of the sale, in the Christian name of the purchaser, the name of the purchaser being S. C. Colvard, instead of Mary A. Colvard, as reported. On motion of the administrator the district court of Nuckolls county, on the 9th day of October, 1883, ordered the report corrected to correspond with the facts, which was done.

It is claimed by the plaintiff in error that the proceedings, under which the administrator's deed is based, are without jurisdiction and void, for the reason that the court had no jurisdiction over the person of Hannah Stack, and because the proceedings were not had in the district court of Clay county, that being the county in which the administrator was appointed. The determination of the question of jurisdiction thus presented necessitates an examination and construction of some of the provisions of the statute governing proceedings by administrators and executors in the sale of real estate which were in force at the time the license in question was granted.

Section 67, chapter 23, Compiled Statutes 1881, entitled "Decedents," provides, "When the personal estate of any deceased person, in the hands of his executors or administrators, shall be insufficient to pay all his debts, with the charges of administering his estate, such executors or administrators may sell his real estate for that purpose, upon obtaining a license therefor, and proceeding therein in the manner hereinafter provided."

Section 68 provides that "In order to obtain such license, the executor or administrator shall present a petition to the district court from which he received his appointment, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, so far as the same can be ascertained; a description of all the real estate of which the testator or intestate died seized; and the condition and value of the respective portions or lots; which petition shall be verified by the oath of the party presenting the same."

Section 69 provides that "If it shall appear by such petition that there is not sufficient personal estate in the hands of the executor or administrator to pay the debts outstanding against the deceased, and the expenses of administration, and that...