State v. O'Day

• Decision Date: 14 July 1902
• Citation: 41 Or. 495,69 P. 542
• Parties: STATE v. O'DAY et al. (Escheat case.) SAME v. TARPLEY et al. (Contempt case.)
• Court: Oregon Supreme Court

69 P. 542

41 Or. 495

STATE v. O'DAY et al. (Escheat case.) SAME v. TARPLEY et al. (Contempt case.)

Supreme Court of Oregon

July 14, 1902

Appeal from circuit court, Multnomah county; John B. Cleland (escheat case) and Arthur L. Frazer (contempt case), Judges.

Escheat proceedings by the state for a decree escheating the estate of P.C. McCann From an order directing Thomas O'Day and another to deliver property to the receiver, and from an order adjudging them in contempt, they appeal. Reversed.

In September, 1895, one P.C. McCann died intestate in Multnomah county, leaving personal property to the value of about $8,000, and J.S. Cooper was regularly appointed administrator of his estate by the county court of that county. After the estate had been fully administered, Cooper filed his final account, showing a balance on hand for distribution of $6,268.47 in cash, 10 shares of the capital stock of the First National Bank of Independence, and a few other articles of personal property. The court thereupon set a day for hearing objections to such final account and for the settlement thereof, and directed that notice be given as provided by law, which was done accordingly. But before the account had been settled and the property distributed, and on September 7, 1899, Cooper was removed as administrator, and John F. Logan appointed as his successor. A few days thereafter an information was filed, under section 3137 Hill's Ann.Laws Or., in the circuit court of Multnomahcounty,--Judge Cleland presiding,--for a decree escheating the property to the state. The information alleges the death of McCann without heirs, the appointment of Cooper his subsequent removal, the appointment of Logan, that certain named persons claimed to be the heirs of McCann, and that the property was then in the possession of Logan as administrator of the estate. An order was made by the circuit court directing and requiring all persons interested in the estate to appear and show cause, if any, on the 6th of November, 1899, why the title to the property should not vest in the state, and that a copy of such order be printed in the Pacific Christian Advocate, a newspaper published in the county, for six consecutive weeks. Summons was also issued in regular form, and served upon both Cooper and Logan, but upon no other person. On the 2d of November, Logan filed an answer setting up the proceedings in the county court, and alleging that he was the regularly appointed and qualified administrator of the estate; that he had in his possession as such administrator certain personal property belonging to the estate; that the estate was still in process of administration, and that certain named persons who claimed to be the heirs had applied to the county court for an order of distribution; that their rights and interests were then in process of adjudication; and that no final order had been made or entered. Thereafter, and before any further proceedings were had on the information, the county court proceeded to a final settlement of the estate, and on November 3, 1899, regularly entered an order of distribution adjudging and decreeing that James McCann, Kate Wood, and Anna McDonough were the lawful heirs of the decedent, and entitled to the property, and directing Logan, as administrator, to deliver it to them. On the same day, in obedience to the order, Logan delivered all the property to the defendants, O'Day & Tarpley, attorneys for the persons whom the county court adjudged to be the heirs; and the county court made an order discharging him as administrator, and exonerating his bondsmen. On the following day an application was made in the escheat proceeding for the appointment of a receiver, and by order of the circuit court a notice was served upon Logan and O'Day & Tarpley requiring them to appear on the 7th and show cause, if any they had, why the appointment should not be made. No service of this notice was made upon the persons adjudged by the county court to be the heirs of the estate, nor were they, or any of them, except James McCann, or their attorneys, O'Day & Tarpley, made parties to the escheat proceeding. Logan answered, setting up his discharge by the county court, and alleging that he had delivered the property in controversy to O'Day & Tarpley. The latter appeared specially and objected to the jurisdiction of the court over them and their clients; but, such objection being overruled, they answered, setting up in detail the proceedings in the county court. A reply was filed, denying the heirship of the clients of O'Day & Tarpley, and the jurisdiction of the county court to make an order of final distribution or to determine the question of heirship. A receiver was afterward appointed, and O'Day & Tarpley were ordered and directed to deliver and turn over to him all the personal property received by them from the administrator of the McCann estate under the orders of the county court, which they refused to do; and on January 15, 1900, an information was filed before Judge Frazer for an order requiring them to show cause why they should not be punished for contempt. As a justification for their acts, they set up in detail the proceedings in the escheat case and also in the county court. Judge Frazer, however, refused to re-examine the questions passed upon by Judge Cleland, adjudged them guilty of contempt, and directed that they be imprisoned until the order was complied with. O'Day & Tarpley appeal from this order, and also from the one directing them to deliver the property in their possession to the receiver.

W.W. Cotton, for appellants.

D.R.N. Blackburn, Atty. Gen., and Chester V. Dolph, for the State.

BEAN J. (after stating the facts).

It is insisted that the order of Judge Cleland requiring the defendants O'Day & Tarpley to deliver to the receiver appointed in the escheat proceedings the property received by them from McCann's administrator in pursuance of the orders of the county court was not final, and therefore not appealable. The statute provides that an order affecting a substantial right, and which in effect determines the action or suit, shall be deemed a judgment or decree from which an appeal may be taken. Hill's Ann.Laws Or. § 535. And it is believed that, so far as the rights of O'Day & Tarpley and their clients are concerned, the order requiring them to deliver possession of the property to the receiver is within the meaning of this section. They were not parties to the escheat proceeding, and as to them the order was practically final. It proposed to take from them possession of property to which they asserted title, and deliver it to another, in a proceeding in which they were not parties, and could not further appear as a matter of right. It would seem that the orderly way would have been either for the receiver to proceed against O'Day & Tarpley in the usual manner to try their rights, or the information should have been amended so as to make them parties to the suit, and thus give them a right to appear in the escheat proceeding and litigate the questions sought to be determined. The order requiring them to deliver the property to the receiver, without their being parties to the proceeding, in effect settled their rights and those of their clients in the subject-matter of the litigation. It would seem, therefore, to have been an appealable order. Basche v. Pringle, 21 Or. 24, 26 P. 863; William Deering & Co. v. Quivey, 26 Or. 556, 38 P. 710; State v. Security Sav. Co., 28 Or. 410, 43 P. 162; Therkelsen v. Therkelsen, 35 Or. 75, 54 P. 885, 57 P. 373. But whether it was or not, the appeal in the contempt proceedings brings up for consideration the same questions sought to be raised on the other appeal.

Upon the merits two questions are presented: First, the effect of a decree of a county court determining who are the heirs of a deceased person, and distributing the personal property belonging to the estate among them; and, second, the effect of the filing of an information in an escheat proceeding, under section 3137, upon the previously acquired jurisdiction of a county court.

By section 895, Hill's Ann.Laws Or., the county court is invested with exclusive jurisdiction in the first instance pertaining to a court of probate,--among other things "to direct and control the conduct and settle the accounts of executors, administrators, and guardians," and "to direct the payment of debts and legacies, and the distribution of the estates of intestates"; and by section 1191 it is provided that, after the payment and satisfaction of all claims and charges against the estate, the county court, or judge thereof, shall direct the payment of legacies, and the distribution of the remaining proceeds of personal property among the heirs and other persons entitled thereto. Here is positive legislative authority for a county court, not only to settle the accounts of executors and administrators, but to direct the payment of debts, and the distribution of the estate of intestates among the heirs or other persons entitled thereto; and the statute provides that its judgments and decrees shall be final and conclusive upon all persons as to the title and status of the property. Id. § 733. There is a marked difference, however, in its jurisdiction over real and personal property. The title to real property descends to the lawful heirs immediately upon the death of the ancestor, subject only to the right of the administrator or executor to possession for the purpose of paying debts, etc. Id. §§ 1120, 1192; Clark v. Bundy, 29 Or. 190, 44 P. 282; In re John's Will, 30 Or. 494, 47 P. 341, 50 P. 226, 36 L.R.A. 242. No order of the county court, therefore, sitting for the transaction of probate business, attempting to partition real estate of a...