Stadelman v. Miner
| Decision Date | 27 March 1917 |
| Citation | 83 Or. 348,163 P. 983 |
| Parties | STADELMAN ET AL. v. MINER ET AL. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit Court, Coos County; John S. Coke, Judge.
On second petition for rehearing. Opinion on first rehearing reversing former opinion and decree below, affirmed.
For former opinions, see 163 P. 585, and 155 P. 708.
Guy C. H. Corliss, of Portland, for appellants. Harry G Hoy, of Marshfield, for respondents.
It is contended in a petition for rehearing that in reversing the decree herein errors were committed: (1) In holding this suit to be a collateral attack; (2) in concluding a county court while transacting probate business is a tribunal of general and superior jurisdiction; and (3) in determining the citation issued by that court was valid. This suit was brought to quiet the title to real property, which right of ownership and possession was alleged to have been disturbed by the execution of an administrator's deed. It is argued by plaintiff's counsel that, though bills of review have been abolished in Oregon (L. O. L. § 390), the form only of the procedure has been changed, while the relief anciently granted by a suit to review, correct, or reverse a decree remains; and, this being so, this suit is a direct attack to impeach and set aside an order of the county court, whereby it attempted illegally to deprive the plaintiffs of their land. That a suit in equity may be maintained in this state to set aside the final judicial determination reached in another cause is settled by repeated adjudications. Crews v. Richards, 14 Or. 442, 13 P. 67; Friese v Hummel, 26 Or. 145, 37 P. 458, 46 Am. St. Rep. 610; Campbell v. Snyder, 27 Or. 249, 41 P. 659; Nessley v. Ladd, 30 Or. 564, 48 P. 420; Hilts v Ladd, 35 Or. 237, 58 P. 32; McLeod v. Lloyd, 45 Or. 67, 75 P. 702; Smith v. Nelson, 46 Or. 1, 78 P 740; Livesley v. Johnston, 48 Or. 40, 84 P. 1044. Such suit, however, is not necessarily a direct attack, though it was so held in Heatherly v. Hadley, 4 Or. 1.
In Morrill v. Morrill, 20 Or. 96, 101, 25 P. 362, 364 (11 L. R. A. 155, 23 Am. St. Rep. 95), in a suit to set aside a decree of partition it was said:
In referring to the language so quoted a noted author remarks:
Van Fleet, Col. At. § 3.
Though the doctrine announced in Heatherly v. Hadley, supra, has not been overruled, it has never been followed. In a note to the case of Morrill v. Morrill, supra (23 Am. St. Rep. 95, 103), it is said:
"All irregularities in the exercise of a court of general jurisdiction are cured by final judgment, and it cannot be collaterally attacked."
In another note to that case (11 L. R. A. 155) it is observed:
Adopting the views thus expressed, it is settled in this state that the suit at bar is a collateral attack upon an order of a county court directing a sale of land belonging to the estate of a decedent to pay the debts thereof. Finley v. Houser, 22 Or. 562, 30 P. 494; Belle v. Brown, 37 Or. 588, 61 P. 1024; Saylor v. Banking Co., 38 Or. 204, 62 P. 652; Meinert v. Harder, 39 Or. 609, 65 P. 1056; Smith v. Whiting, 55 Or. 393, 106 P. 791; Mansfield v. Hill, 56 Or. 400, 107 P. 471, 108 P. 1007; Harpold v. Arant, 64 Or. 376, 130 P. 737; Purdy v. Winter's Estate, 79 Or. 614, 156 P. 285; Johnstone v. Chapman Timber Co., 79 Or. 674, 156 P. 286.
It is insisted by plaintiffs' counsel that section 9, art. 7 of the Constitution of Oregon, expressly declaring county courts to be inferior tribunals and subject to the appellate jurisdiction and control of the circuit courts, governs the determination of this cause. In support of the assertion thus made attention is called to the case of Garnsey v. County Court, 33 Or. 201, 54 P. 539, 1089, and Farrow v. Nevin, 44 Or. 496, 75 P. 711, which were writs of review, or certiorari, to annul allowances made by county courts of claims against estates of decedents. In the first case the writ was treated as a collateral attack, while in the second it was considered to be direct. The attack in each instance, though assailing an order of the county court made in the transaction of probate business, was certainly direct because the writs of review, which in such cases are concurrent with the right of appeal, were sued out in the time and manner limited by the statute to correct judicial errors apparent on the face of the record. L. O. L. § 605; Van Fleet, Col. At. § 3; Malone v. Cornelius, 34 Or. 192, 55 P. 536; Title Abstract Co.
v. Nasburg, 58 Or. 190, 113 P. 2. In Garnsey v. County Court, supra, it was held that a county court, sitting for the transaction of probate business, was an inferior tribunal, citing as sustaining that conclusion the case of Kirkwood v. Washington County, 32 Or. 568, 571, 52 Pac. 568, which was a writ of review challenging an order relating to the collection of taxes, a matter pertaining wholly to county business. If an inferior court as there defined is one from which an appeal will lie, it necessarily follows that circuit courts in Oregon are judicial tribunals of that class, for their judgments and decrees are reviewable on appeal; but such courts are conceded to be general and superior, and hence the definition so given is inapplicable. The conclusion reached in Garnsey v. County Court, supra, and in Farrow v. Nevin, supra, so far as they in effect relate to collateral attacks, are diametrically opposite, thus demonstrating that both cannot be correct expressions of the law. It may well be doubted if either decision is proper on the ground that a writ of review will not lie from the action of a county court in probate matters, for to admit that a precept of that kind is available in such cases is to concede that the county court while transacting business pertaining to the settlement of a decedent's estate is an inferior tribunal, a conclusion which is at variance with every other decision rendered by this court on that subject.
In the transaction of county business the county judge usually sits with the county commissioners, which officers when thus assembled at the time and place appointed by law, though exercising administrative and executive duties concerning the financial affairs of the county, its police powers, and its corporate business, are not designated as the board of county commissioners, but are called the county court. Const. Or. art. 7, § 12; L. O. L. § 937. When the county commissioners and the county judge are thus sitting for the transaction of county business, such county court is an inferior tribunal. Const. Or. art. 7, § 9; Thompson v. Multnomah County, 2 Or. 34, 40; Johns v. Marion County, 4 Or. 46, 49; State v. Officer, 4 Or. 180, 183; Bewley v. Graves, 17 Or. 274, 282, 20 [83 Or. 393] P. 322; State v. Myers, 20 Or. 442, 444, 26 P. 307; Cameron v. Wasco County, 27 Or. 318, 321, 41 P. 160; Grady v. Dundon, 30 Or. 333, 336, 47 P. 915; Kirkwood v. Washington County, 32 Or. 568, 52 P. 568; Munroe v. Thomas, 35 Or. 174, 175, 57 P. 419. Section 1, art. 7, of the organic law of the state, as far as important herein, reads:
"The judicial power of the state shall be vested in a supreme court, circuit courts, and county courts, which shall be courts of record, having general jurisdiction, to be defined, limited, and regulated by law, in accordance with this Constitution."
This clause was amended by an exercise of the initiative power at a general election held November 8, 1910. Laws 1911, p. 7. The changes thus authorized, however, have never been made. The county court has been given exclusive original jurisdiction in all probate matters. L. O. L. § 936. In construing these provisions together, it has uniformly been held that a county court in the transaction of probate business is a tribunal of general and superior jurisdiction, and its orders in such cases are not subject to collateral attack. Russel v. Lewis, 3 Or. 380; Tustin v. Gaunt, 4 Or. 305; Monastes v. Catlin, 6 Or. 119; Bewley v. Graves, 17 Or. 274, 20 P. 322; Richardson's Guardianship, 39 Or. 246, 64 P. 390; Slate's Estate, 40 Or. 349, 68 P. 399; Smith v. Whiting, 55 Or. 393, 106 P. 791; Hillman v. Young, 64 Or. 73, 127 P. 793, 129 P. 124; Yeaton v. Barnhart, 78 Or. 249, 150 P. 742, 152 P. 1192. To the same effect, see Clark v. Rossier, 10 Idaho, 348, 78 P. 358, 3 Ann. Cas. 231; In re Creighton, 91 Neb. 654, 136 N.W. 1001, Ann. Cas. 1913D, 128; Kavanagh v. Hamilton, 53 Colo. 157, 125 P. 512, Ann. Cas. 1914B, 76.
The statute referring to the application of an administrator or executor for an order to sell real property belonging to the estate of a decedent, to discharge the debts thereof, reads:
To continue reading
Request your trial