Varnes v. White

• Decision Date: 02 July 1932
• Docket Number: Civil 3196
• Citation: 12 P.2d 870,40 Ariz. 427
• Parties: ANNA VARNES, Appellant, v. ELLA S. WHITE and STEVEN HENDERSON, Appellees
• Court: Arizona Supreme Court

12 P.2d 870

40 Ariz. 427

ANNA VARNES, Appellant, v. ELLA S. WHITE and STEVEN HENDERSON, Appellees

Civil No. 3196

Supreme Court of Arizona

July 2, 1932

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Mr. F L. Zimmerman, for Appellant.

Messrs Marks & Marks, for Appellees.

OPINION

LOCKWOOD, J.

Mollie Varnes, hereinafter called decedent, died intestate in 1927 leaving surviving her Lewis Varnes, her husband, and Ella S White and Steven Henderson, her daughter and son, respectively, by previous marriages. The latter two were over the age of twenty-one years, and are hereinafter called defendants. There was no issue of her marriage with Varnes. Probate proceedings of the estate of decedent were had in due form, Lewis Varnes acting as the administrator. The only property inventoried was lots 5 and 6, block 21 of Collins addition in the city of Phoenix, which were appraised at the sum of $2,000. In July, 1928, the administrator filed his final account and petition for distribution, and the superior court upon such petition decreed an undivided one-half of the property in question to Lewis Varnes and an undivided one-fourth each to defendants herein. On November 6, 1930, the administrator was discharged, and no appeal has ever been taken from any of the probate proceedings.

On March 14th, 1931, Lewis Varnes, who had remarried, deeded all of the above-described property to Anna Varnes, his then wife, hereinafter called plaintiff, the consideration being love and affection. The deed is in form a warranty, and after describing the property states:

"The said premises are and/or were the community property of myself and Mollie Varnes my deceased wife, who was a widow when I married her and whose name then was Mollie Henderson, and who had two children by Henderson and a former husband, whose names now are Steven Henderson, aged about 47 years, and Ella S. White, aged about 49 years; the said two children being my stepchildren."

On April 1, 1931, plaintiff brought suit to quiet her title in and to all of said lots 5 and 6. Defendants answered with a general denial and then set up in a cross-complaint the death of their mother, the community character of the property involved, and the decree of distribution hereinbefore referred to, asking that their title be quieted to the one-fourth interest respectively assigned to them by such decree.

The matter was heard before the trial court sitting without a jury, and judgment was rendered quieting the title in accordance with the provisions of the decree of distribution, and from this judgment this appeal has been taken.

There are three assignments of error under which plaintiff contends that as a matter of law: First, defendants, on the facts as above stated, had no estate of inheritance from their mother Mollie Varnes in said property, and, second, the decree of distribution above referred to was void because Lewis Varnes was entitled to have distributed to him under chapter 5, title 6, Revised Statutes of Arizona of 1913, Civil Code, all of said property as a homestead.

Defendants insist that the decree of distribution followed the law, and in addition thereto urge that even if it did not, this proceeding, in so far as it attempts to have plaintiff's title to the interest distributed by such decree to defendants quieted in her, is a collateral attack upon the judgment of a court of competent jurisdiction.

The case presents several interesting points of law, some of which have never been specifically passed upon in this or indeed, so far as we can ascertain, in any other jurisdiction, but we think the matter can and should be determined upon the question of whether or not the decree of distribution entered by the probate court may be successfully attacked in this proceeding. It is, of course, the general rule of law that a judgment rendered by a court of competent jurisdiction is not open to contradiction or impeachment by the parties thereto or their privies in respect to its validity, verity or binding effect, in any collateral action or proceeding, except for fraud, and that even though it be so irregular and defective that it would be set aside or annulled on a proper application for that purpose, it is not subject to collateral impeachment so long as it stands unreversed and in force. Henderson v. Towle, 23 Ariz. 377, 203 P. 1085; First National Bank of Globe v. McDonough, 19 Ariz. 234, 168 P. 640; Tube City Min. Co. v. Otterson, 16 Ariz. 305, L.R.A. 1916E 303, 146 P. 203; 34 C.J. 511.

It is, however, equally true that where a judgment is void for want of jurisdiction it is open to attack in a collateral proceeding. Brecht v. Hammons, 35 Ariz. 383, 278 P. 381; Hovey v. Elliott, 167 U.S. 409, 42 L.Ed. 215, 17 S.Ct. 841; Carvell v. Weaver, 54 Cal.App. 734, 202 P. 897; 34 C.J. 528. We must therefore determine whether or not the decree of distribution referred to herein is void for lack of jurisdiction. In the case of Brecht v. Hammons, supra, we stated the three things which must concur to make a judgment valid upon its face. We restate them as follows: The court must have (a) jurisdiction of the subject matter of the case, (b) jurisdiction of the persons involved in the litigation, and (c) jurisdiction to render the particular judgment given. If these matters concur, even though the judgment be erroneous or wrong, so that it could be reversed on appeal or set aside on direct attack, it is not subject to collateral attack. Let us apply these tests to the facts as shown by the record in the case at bar. According to the preponderance of authority, courts of probate, although limited in their sphere to matters pertaining to the settlement of decedents' estates, yet within their sphere their jurisdiction is generally unlimited and exclusive so that their judgments and orders are entitled to the same presumption of jurisdiction as are those of courts of general and equity powers. This is particularly true when probate jurisdiction is conferred upon a court which has general jurisdiction otherwise, such as our superior courts. Luco v. Commercial Bank, 70 Cal. 339, 11 P. 650; Reynolds v. Brumagim, 54 Cal. 254; In re Bell's Estate, 70 Wash. 498, 127 P. 100. That the court had jurisdiction of the subject matter is obvious. The property belonged to the estate of a decedent and necessarily had to be administered in order to establish its freedom from debts and to determine heirship, if for no other purposes.

It is equally true that it had jurisdiction of the persons of the parties. Lewis Varnes was the administrator and defendants were duly notified of the proceedings, and, indeed, rely upon the title established by the decree of distribution. Plaintiff, Anna Varnes, claiming by reason of a deed from Lewis Varnes made subsequently to the decree of distribution, certainly is bound thereby to the same extent as is her grantor. Nor indeed do we understand that plaintiff questions the jurisdiction either of the person or subject matter, but that her contention is rather that the probate court had no jurisdiction to make the particular decree which it did make. This contention is founded on chapter 5, title 6, supra, which contains certain provisions for the support of the family and for a homestead. Paragraph 866, Rev. Stats. Ariz. 1913 (Civ. Code), which is found in that chapter, reads in part as follows:

"Upon the return of the inventory, or at any subsequent time during the administration, the court may, on its own motion, or on petition therefor, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead, selected, designated, and recorded; provided, that such homestead was selected from the common property, or from the separate property, of the persons selecting or joining in the selection of the same. If none has been selected, designated, and recorded, or, in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife, and the minor children; or if there be no surviving husband or wife, then for the use of the minor children, in the manner provided by law, out of the common property, or if there be no common property, then out of the real estate belonging to the decedent."

Paragraph 870 in the same chapter also provides for the setting aside as a homestead of estates of a certain value under circumstances described therein.

Plaintiff contends that Lewis Varnes had rights under both of these...