State ex rel. Lindekugel v. Probate Court of Sibley County

• Decision Date: 12 January 1885
• Citation: 22 N.W. 10,33 Minn. 94
• Parties: State of Minnesota ex rel. Frederick Lindekugel v. Probate Court of Sibley County
• Court: Minnesota Supreme Court

22 N.W. 10

33 Minn. 94

State of Minnesota ex rel. Frederick Lindekugel v. Probate Court of Sibley County

Supreme Court of Minnesota

January 12, 1885

Application for a writ of prohibition to the probate court of Sibley county.

Let the writ of prohibition issue as prayed for.

H. C Eller, for relator.

S. & O Kipp, for respondent.

OPINION

Gilfillan, C. J.

December 6, 1879, the probate court of Sibley county duly appointed Frederick Lindekugel, Sr., administrator of the estate of Henry Dietz, deceased. February 14, 1880, the court, on the petition of the administrator, granted license to sell certain real estate, of which the deceased died seized, for payment of debts of the estate. The sale was accordingly had, the real estate being sold to one Sherbert, through whom this relator claims title. The administrator made his report of sale, and May 8, 1880, the court entered its order or decree confirming the sale. May 19, 1880, the administrator, as directed by the order of confirmation, executed to the purchaser a deed conveying the real estate pursuant to the foregoing proceedings. Afterwards the administrator filed his final account, and March 25, 1882, the court entered its order auditing and allowing the same, and discharging the administrator. October 20, 1884, the widow of deceased filed in the probate court her petition setting forth certain facts showing, as claimed by her, that the sale was fraudulent, illegal, and void, and praying that the license to sell and the order confirming the sale be vacated. An order for hearing on said petition was thereupon made and served. On the day appointed by the order the relator appeared and objected to the jurisdiction of the probate court to proceed in the matter. The court decided that it had jurisdiction and would proceed to a hearing. Hence this application for a writ of prohibition.

In the case of State v. Probate Court of Ramsey Co., 19 Minn. 85, (117,) a case precisely similar to this, except, perhaps, in some of the facts alleged as grounds for vacating the license and order of confirmation, it was held that the authority of the probate court over the subject-matter of the sale of the real estate was exhausted when it had confirmed the sale; the court saying: "The land, as it were, has passed out of court, and its proceeds have taken its place." This must necessarily be the result so long as the order of confirmation stands. For that reason the jurisdiction of the probate court to hear a petition to vacate the order was denied by this court in that case.

It is urged, however, that power to vacate the order is given, or to be implied, from the sixth subdivision, Gen. St. 1878 c. 49, § 13, passed since the case referred to was decided. That subdivision gives an appeal from "an order vacating, or refusing to vacate, a previous order or...