Swinehart v. Turner
| Decision Date | 23 February 1924 |
| Citation | 224 P. 74,38 Idaho 602 |
| Parties | ANNIE SWINEHART, Appellant, v. THEO. TURNER, LUCY P. TURNER, PATRICK DUFFY, ANTONIA DUFFY and E. H. MCBETH, Respondents |
| Court | Idaho Supreme Court |
PLEADING AND PRACTICE-IRRELEVANT AND REDUNDANT MATTER-SUBJECT TO BE STRICKEN UPON MOTION-WHEN PLEADING GOOD AGAINST GENERAL DEMURRER-JURISDICTION OF PROBATE COURT TO DECREE SALE OF REAL ESTATE-SPECIAL NOT GENERAL-STATUTORY REQUIREMENTS-MUST BE REGULARLY PURSUED.
1. A complaint should state the facts constituting the cause of action in ordinary and concise language, and where it contains irrelevant and redundant matter, the same may be stricken upon motion.
2. Although a complaint may contain irrelevant and redundant matter, if it be challenged by a general demurrer the same should be overruled when such complaint alleges facts which show the plaintiff entitled to some relief.
3. Proceedings in probate are statutory, and it is necessary to their validity that the court have jurisdiction of the subject matter-that is, the estate of the deceased-and also of the question which its judgment assumes to decide.
4. A probate court may have jurisdiction of the estate of a deceased person, but in order for its decree to be valid, the statutory requirements as to the proceedings must be substantially complied with, in order to bind those interested in the estate.
5. The authority of the probate court to order the sale of real estate is not general, but special and limited, and is derived from the statute, and can be exercised only for the purposes mentioned and in the manner prescribed by the statute.
6. The validity of a decree in probate may be attacked by a suit in equity on the ground that it was fraudulently obtained, and such attack is direct and not collateral.
7. As to whether or not the vested interest of the survivor of a marital community is subject to sale by a decree of the probate court in the course of the administration of that part of the estate belonging to the deceased, considered but not decided.
8. The complaint considered, and held to state a cause of action as against a general demurrer, or the special demurrer interposed.
APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. Ralph W. Adair, Judge.
Action to set aside administrator's deed. From judgment dismissing complaint, plaintiff appeals. Reversed and remanded, with instructions.
Cause reversed, with instructions. Appellant recovered her costs.
P. C O'Malley, J. M. Stevens and D. D. Mote, for Appellant.
An action brought to set aside a deed made under confirmation of sale by a probate court is a direct attack. (Acton v Lamberson, 102 Ore. 472, 202 P. 421.)
The attack on a probate sale is direct and not collateral where it is based upon the grounds of fraud. The fraud must be however, a fraud extrinsic or collateral to the questions examined and determined in the action. (Bergin v Hate, 99 Cal. 52, 33 P. 760; Pico v. Cohn, 91 Cal. 129, 25 Am. St. 159, 25 P. 537, 13 L. R. A. 336; James v. Young, 111 Kan. 310, 206 P. 905; Campbell-Kawannanakoa v. Campbell, 152 Cal. 201, 92 P. 184.)
It is pleaded the Turners perpetrated such a fraud upon the probate court as would deprive the court of jurisdiction to confirm the sale. (McAdow v. Boten, 67 Kan. 136, 72 P. 529.)
Courts possessing general equity jurisdiction have power to grant proper relief in all cases of fraud. (Busenbark v. Busenbark, 33 Kan. 578, 7 P. 245.)
The district court is the only court in which the plaintiff could secure the relief prayed for. (18 Cyc. 812; 24 C. J. 674, sec. 1673; Miller v. Mitcham, 21 Idaho 741, 123 P. 941.)
"The validity of probate proceedings may be attacked upon the ground that such proceedings have worked a fraud, and a court of equity has jurisdiction to compel the restoration of lands or proceeds fraudulently acquired by such proceedings." (Glover v. Brown, 32 Idaho 426, 184 P. 649; Simonton v. Simonton, 33 Idaho 255, 193 P. 386; Weyant v. Utah Sav. & Trust Co., 54 Utah 181, 182 P. 189; Balbridge v. Smith, 76 Okla. 36, 184 P. 153.)
The jurisdiction of the probate court ceased when he made the order of confirmation and the same was filed for record. (State v. Probate Court, 33 Minn. 94, 22 N.W. 10; State v. Probate Court, 19 Minn. 117; Hart v. Hart, 39 Miss. 221, 70 Am. Dec. 668; 22 Cent. Dig., sec. 1555, p. 299.)
The complaint states a cause of action. (Gafford v. Dickson, 37 Kan. 287, 15 P. 175; Bergin v. Hate, supra; Weyant v. Utah Sav. & Trust Co., supra; Acton v. Lamberson, supra; 21 R. C. L. 827; Pacific Vinegar etc. Works v. Smith, 145 Cal. 352, 104 Am. St. 42, 78 P. 550; Ramspeck v. Pattillo, 104 Ga. 772, 69 Am. St. 197, 30 S.E. 962, 42 L. R. A. 197; Florence v. Adams, 2 La. 556, 38 Am. Dec. 226; Tyler v. Sanborn, 128 Ill. 126, 15 Am. St. 974, 21 N.E. 193, 4 L. R. A. 218; 31 Cyc. 1432-1437; Bunker v. Miles, 30 Me. 431, 50 Am. Dec. 632; Meek v. Hurst, 223 Mo. 688, 135 Am. St. 531, 122 S.W. 1022.)
The power vested in probate courts to sell real estate is a statutory power, was not recognized at common law, and is not a constitutional power. It is found only in legislative authority, and must be strictly construed, and every provision of the statute strictly complied with. (Lampton v. Vingar, 61 Mont. 530, 202 P. 796; 11 R. C. L. 319; notes, 56 Am. Dec. 56; notes, 79 Am. St. 82; Wyman v. Campbell, 6 Ala. 219; 31 Am. Dec. 677.)
Swanson & Tydeman, D. W. Standrod and Jas. B. Bacon, for Respondents.
The amended complaint attacks a sale of real estate had in the probate court and in such proceedings a probate court in Idaho has exclusive jurisdiction. (Const., art. 5, sec. 21; Estate of McVay (on rehearing), 14 Idaho 64, 93 P. 31.)
In the course of the probate proceedings a probate court has power to sell real estate belonging to said estate. (C. S., chap. 279.)
All that a probate court does in the exercise of its probate jurisdiction it does as a court of general jurisdiction and all the legal presumptions which attach to the acts of a court of general jurisdiction attach thereto. (C. S., sec. 6467; Jorgenson v. McAllister (on rehearing), 34 Idaho 182, 202 P. 1059; Clark v. Rossier, 10 Idaho 348, 3 Ann. Cas. 231, 78 P. 358.)
The attack made upon the probate proceedings is a collateral attack. (O'Neill v. Potvin, 13 Idaho 721, 93 P. 20; Estey & Camp v. Williams (Tex. Civ. App.), 133 S.W. 470; Cassedy v. Norris, 118 Ark. 449, 177 S.W. 10; Ferrell-Michael Abstract & Title Co. v. McCormac (Tex. Civ. App.), 184 S.W. 1081.)
The fraud which will authorize a court of equity to take jurisdiction for the purpose of vacating a judgment is extrinsic or collateral fraud. (Donovan v. Miller, 12 Idaho 600, 10 Ann. Cas. 444, 88 P. 82, 9 L. R. A., N. S., 524; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93.)
After a full hearing upon plaintiff's objections the probate court made a sale. Where a party is given an opportunity to be heard he cannot in an equitable action have the judgment thus entered vacated for fraud. (Flood v. Templeton, 152 Cal. 148, 92 P. 78, 13 L. R. A., N. S., 579; Black on Judgments, 2d ed., sec. 368; Donovan v. Miller, supra; La Fitte v. Salisbury, 43 Colo. 248, 95 P. 1065; City of Guthrie v. McKennon, 19 Okla. 306, 91 P. 851.)
Where a party to an action has had an opportunity to be heard in the original proceedings and to have the matters reviewed on appeal, but has neglected to avail himself thereof, he is not entitled to redress in equity. (Froebrich v. Lane, 45 Ore. 13, 106 Am. St. 634, 76 P. 351; Abrams v. White, 11 Idaho 497, 83 P. 602.)
The law required plaintiff to contest the claim against the estate in the probate court. (Lamont v. Vinger, 61 Mont. 530, 202 P. 769; Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237; Schroeder's Estate, 46 Cal. 304; Crosby's Estate, 55 Cal. 574; Estate of Hidden, 23 Cal. 363; In re Coryell's Estate, 16 Idaho 201, 101 P. 723.)
The allowance of a claim by the probate court establishes its validity so as to authorize an order of sale. (24 C. J., p. 548, sec. 1441, note 78; Milburn v. East, 128 Iowa 101, 102 N.W. 1116.)
Under C. S., sec. 7655, such a sale is only at most voidable. (Cardoner v. Day, 253 F. 572; French v. Phelps, 20 Cal.App. 101, 128 P. 772; Boyd v. Blankman, 29 Cal. 19, 87 Am. Dec. 146; In re Richards' Estate, 154 Cal. 478, 98 P. 528; Cain v. McGeenty, 41 Minn. 194, 42 N.W. 933; Fairburn Banking Co. v. Summerlin, 144 Ga. 31, 85 S.E. 1007.)
The complaint states no cause of action in that it shows on its face that the plaintiff had an adequate remedy at law.
If the sale was confirmed over her objections, the statute gave her the right of appeal and a full review of all matters in the district court. (C. S., sec. 7173, subd. 5; McGregor v. Jensen, 18 Idaho 320, 109 P. 729.)
She had the privilege to move to have the decree vacated within six months after it was entered. (C. S., sec. 6726; Chandler v. Probate Court, 26 Idaho 173, 141 P. 635.)
She had the legal remedy of objecting to the final account when this was filed. (C. S., sec. 7704.)
And at that time any objection to any claim against the estate could be heard. (In re Coryell's Estate, supra.) It was her legal duty to do this. (Chandler v. Probate Court, supra.)
Her fourth legal remedy was to oppose the sale in the probate court. (C. S., sec. 7633; Lamont v. Vinger, supra.)
--This action was commenced in the district court in and for Bannock county to vacate and set aside the proceedings had in the probate court of that county in the matter of an administrator's sale of certain real estate being administered as the estate of Daniel Swinehart,...
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