Welch v. Focht
| Decision Date | 12 February 1918 |
| Docket Number | Case Number: 8436 |
| Citation | 1918 OK 90,67 Okla. 275,171 P. 730 |
| Parties | WELCH v. FOCHT et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Judgment -- Collateral Attack -- Courts of Record -- County Courts.
The county courts of this state are courts of record and have original general jurisdiction in probate matters. The orders and judgments of such courts, when acting within their jurisdiction, are entitled to the same favorable presumptions and the same immunity from collateral attack as are accorded those of other courts of general jurisdiction.
2. Guardian and Ward -- Sale of Land -- Collateral Attack -- Scope of Inquiry.
In a collateral attack on a guardian's deed and the sale proceedings of a county court, the scope of inquiry is confined to the question as to whether the county court had jurisdiction of such proceedings.
3. Courts -- "Jurisdiction."
"Jurisdiction" is the power to hear and determine the subject-matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them. The question is whether, on the case before a court, their action is judicial or extrajudicial, with or without the authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction.
4. Guardian and Ward -- Sale of Land -- Collateral Attack.
A guardian's petition for the sale of his ward's real estate disclosed that the ward had no personal property or estate, that he owned the real estate described in the petition, and that no income was derived therefrom, alleged that it was necessary to sell said real estate, and prayed for an order of sale, but did not affirmatively allege the statutory grounds for the sale. The order of sale recited that "upon due examination and consideration of said petition, and after a full hearing on the same, and upon due consideration of the Proofs offered in said matter, the court finds that the sale of all the real estate belonging to said ward, mentioned in said petition and hereinafter described, is necessary for the purpose of properly maintaining, supporting, and educating said minor: the father of said minor being wholly unable to do so, and for the best interest of said ward." Held, that said sale proceedings were not void on collateral attack.
Error from District Court, Creek County; Ernest B. Hughes, Judge.
Action by Jesse James Welch, a minor, by O. L. Clark, his legal guardian, against Adam Focht and others. Demurrers to petition sustained, action dismissed, and plaintiff brings error. Affirmed.
Harry H. Rogers, E. C. Hopper, Jr., Kirk B. Turner, and Martin E. Turner, for plaintiff in error.
James B. Diggs, Rush Greenslade, William C. Liedtke, Burdick & Wilcox, H. W. Harris, McGuire & Devereux, Carroll & Mason, and C. H. Rosenstein, for defendants in error.
¶1 The plaintiff in error, Jesse James Welch, a minor, by O. L. Clark, his legal guardian, was plaintiff, and the defendants in error, Adam Focht, Addie Fockt, Stroud State Bank, a corporation, Gypsy Oil Company, a corporation, Oklahoma Natural Gas Company, a corporation, George Dollinger, Edward L. Moore, W. H. Wilcox, C. W. Pettigrew, W. A. Thompson, Wilbert Harrington, M. Chamberlain, Fred A. Chapman, Edith Thomas, C. D. Steen, Bertha A. Steen, A. C. Stinson, and J. V. McDonnell were defendants in the trial court, and the parties will hereinafter be referred to as "plaintiff" and "defendants."
¶2 The plaintiff's action was instituted to recover the possession of and to quiet the title to a tract of land allotted to him as a newborn freedman. The petition in this action alleged that the title of the several defendants was based upon or deraigned through a certain pretended guardian's deed, purporting to have been executed by one C. O. Potter, as the guardian of the plaintiff, Jesse James Welch, to one Lee Patrick; that the sale proceedings (which are fully set out in the petition) were had in the county court of McIntosh county; and that these proceedings were absolutely null and void on account of various alleged errors and irregularities appearing on the fact thereof. It is not claimed in the petition that there was any fraud practiced in the sale of the land, or that the land did not sell for its actual value. The defendants filed separate demurrers to the plaintiff's petition, which were sustained by the trial court, and from the order so sustaining the demurrers, and dismissing the plaintiff's action, the plaintiff has appealed to this court.
¶3 Plaintiff complains of 12 alleged serious defects in the sale proceedings, but of these all except 2 have been abandoned by counsel for plaintiff in his brief, for the reason, as he states, that, since the judgment of the trial court was rendered in this case, this court has, in its decisions, foreclosed the ephor objections to the sale proceedings made by the plaintiff in the trial court.
¶4 The most serious question in the case, and the one most vigorously insisted upon by the plaintiff, is that the petition fled in the county court of McIntosh county for the sale of the land in controversy was insufficient to confer authority or jurisdiction upon the county court of McIntosh county, Okla., to order a sale of the plaintiff's land, in that said petition for the sale of said land failed to disclose the condition of the estate of the ward, and failed to show facts disclosing the necessity or expediency of the sale; and on account of the alleged insufficiency of the petition it is urged that the county court of McIntosh county was without jurisdiction to make the order of sale, and that all the subsequent proceedings are therefore null and void. The petition for the sale of the land, which was properly verified, omitting the verification and indorsements, rends as follows:
¶5 In the consideration of the question presented, it is important first to determine the character of the attack made upon the sale proceedings. It may be here stated that the petition is very defective, and does not set forth facts showing the necessity or the expediency of the sale, as is provided by section 6565, Rev. Laws of Oklahoma 1910, and we would not hesitate to hold the same insufficient on a direct attack. But plaintiff's action is not a direct, but a collateral, attack upon the sale proceedings of the county court of McIntosh county. Hathaway et al. v. Hoffman et al., 53, Okla. 72, 153 P. 184: Continental Gin Co. v. De Bord, 34 Okla. 66, 123 P. 159; Holmes v. Holmes, 27 Okla. 140, 111 P. 220, 30 L.R.A. (N. S.) 920; Sockey v. Winstock, 43 Okla. 758, 144 P. 372; Moffer v. Jones, 67 Okla. 171, 169 P. 652.
¶6 In the last-named case we held that the scope of inquiry in a collateral attack on the probate proceedings of a county court was confined to the question as to whether the county court had jurisdiction of such proceedings, and that its orders would not be held void for errors or irregularities during the progress of the proceedings. The county court of McIntosh county is a court of record and has original general jurisdiction over probate matters. Eaves v. Mullen, 25 Okla. 679, 107 P. 433; Scott et al. v. McGirth, 41 Okla. 520, 139 P. 519.
¶7 The prevailing rule is that, when probate courts are courts of general jurisdiction, the orders and judgments of such courts, when acting within their jurisdiction, are entitled to the same favorable presumptions and the same immunity from collateral attack as are accorded those of other courts of general jurisdiction. Moffer v. Jones, supra; Estate of Davis, 151 Cal. 318, 86 P. 183, 90 P. 711, 121 Am. St. Rep. 105; Long v. Burnett, 13 Iowa 28, 81 Am. Dec. 420; Price v. Springfield Real Estate Ass'n, 101 Mo. 107, 14 S.W. 57, 20 Am. St. Rep. 595; Sherwood v. Baker, 105 Mo. 472, 16 S.W. 938, 24 Am. St. Rep. 399; Robbins v. Boulware, 190 Mo. 33, 88 S.W. 674, 109 Am. St. Rep. 746; Crown R. E. Co. v. Rogers Committee, 132 Ky. 790, 117 S.W. 275, 136 Am. St. Rep. 207.
¶8 There is also practical unanimity among the authorities that a judgment of a court of general jurisdiction cannot be collaterally attacked unless, the record affirmatively shows want of jurisdiction, and every fact not negatived by the record is presumed in support of the judgment of a court of general jurisdiction, and where the record of the court is...
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