State Ex Rel. O'Neil v. District Court

MR. JUSTICE STEWART delivered the opinion of the court. Martha J. O’Neil died intestate in Cascade county, Montana, on February 11, 1932. She left an estate consisting entirely of real property. The heirs were her four children — ■ M. L. O’Neil, Joseph O’Neil, Mary E. Cassady and Charles F. O’Neil. Mary E. Cassady, the daughter, was appointed ad-ministratrix on April 6, 1932. On August 31, 1932, the district court of Cascade county, a respondent herein, made and entered a final decree distributing the property to the four children in equal parts. This decree will hereafter be called the original decree. On September 30, 1932, the administratrix, having made distribution, was discharged by proper order. Thereafter, on February 13, 1933, one A. J. Fousek, obtained a judgment in respondent court against M. L. O’Neil, one of the distributees. Writ of execution was issued thereon and levy duly made against his interest in the real property. On March 21, 1933, the sheriff of Cascade county by virtue of the writ of execution sold the interest of M. L. O’Neil. Fousek became the purchaser and received a sheriff’s certificate. On February 27, 1932, Joseph 0 ’Neil, one of the distributees, and the relator herein, filed a petition with the respondent court seeking to. have the original decree modified and annulled 'and a new decree entered. In this petition he alleged error in *395 distribution, and Ms surprise, lack of knowledge and information as to the contents of the decree. He alleged, by means of his verified petition and the accompanying affidavit of M. L. O’Neil, that, prior to the death of the deceased mother, M. L. O’Neil had received and accepted certain property from her as an advancement in full of his share of her estate, and that it was at that time mutually agreed that M. L. O’Neil should receive no more in property or money from her estate. Upon that state of facts he urged that the original decree of distribution was erroneous in distributing a one-fourth interest in the property of the estate to M. L. O’Neil. On March 22, 1933, in accordance with the petition, the court made and entered an order annulling the original decree, and at the same time made and entered a second decree of distribution modifying and changing the terms of the original decree, and omitting therefrom the name of M. L. O’Neil as a distributee. This decree will hereafter be called the second decree. Thereafter, on or about September 1, 1933, Fousek filed a petition in which he set forth facts showing his interest in the property of the estate, which had been acquired by levy made upon, and purchase of, the interest distributed to M. L. O’Neil in the original decree. Fousek alleged that he had no notice of the proceedings by which the second order and decree were made and entered. He also alleged that petitioner, Joseph O’Neil, in seeking to have the original decree vacated, acted “with the intent to cheat, defraud and deprive petitioner of his interest in the lands.” He charged that the court, in making the second decree, acted without knowledge of his interest in the property, which interest, he alleged, had become vested in him prior thereto. He alleged that the court had no jurisdiction to make the second order and decree, and asked that they he annulled and set aside, and that the original decree be restored to full force and effect. Thereupon the court issued an order to show cause, and relator appeared and filed an answer. At the hearing relator and Fousek appeared before the court and submitted evi- *396 deuce. The matter was then submitted to the court for determination. On February 8, 1934, the court made and entered an order granting the petition of Fousek and canceling and annulling the second degree. (This in effect resulted in the reinstatement of the original decree.) This order will hereinafter be called the third decree. Eelator then made application to this court for a writ of supervisory control to compel the court to set aside its third decree or to show cause why it should not be set aside. The writ was issued, and the respondent court and judge made answer and appeared to show cause. They contend that they did have jurisdiction to make the order of February 8, 1934; relator claims they did not have such jurisdiction. Both parties seem to attach considerable importance to the question whether the respondent court had jurisdiction to make the second order, vacating the original decree and entering a second decree of distribution. Eelator contends that, under sections 9187 and 10365, Revised Codes of 1921, the court did have jurisdiction to vacate the original decree of distribution. Section 9187 provides, in part, as follows: “ * * * The court * * * may, also, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; provided, that application therefor be made within reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. * * * » Section 10365 provides: “Except as otherwise provided in sections 10018 to 10464 of this code, the provisions of sections 9008 to 9832 of this code are applicable to and constitute the rules of practice in the proceedings mentioned in said sections 10018 to 10464.” Respondents assert that the remedy provided in section 9187 was not properly available to relator; that the only remedy he had was to appeal from the original decree of distribution. In support of this contention respondents cite section 10328, Eevised Codes of 1921. That section provides as follows: “In *397 tbe order [of distribution], the court or judge must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand, sue for, and recover their respective shares from the executor or administrator, or any person having the same in possession. Such order is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal. ’ ’ Respondents argue that section 9187 is a general statute, applying in general terms to all orders in all proceedings, but that section 10328 is a special statute, applying to modifications or amendments to decrees of distribution in particular; therefore they contend for the rule that, where one statute deals with a subject in a general way and another in a special way, the latter will control. California has statutes similar to sections 9187, 10365, and 10328. The supreme court of that, state has held that, notwithstanding the provisions of section 10328 (Code Civ. Proc. Cal., sec. 1666), making a decree of distribution conclusive unless set aside or modified on appeal, the court may, under the section corresponding to our section 9187,' set it aside on a showing that it had been taken against a party through his mistake, surprise, inadvertence or excusable neglect. (Bacon v. Bacon, 150 Cal. 477, 89 Pac. 317, 320; In re Hickey’s Estate, 129 Cal. 14, 61 Pac. 475; De Pedrorena v. Superior Court, 80 Cal. 144, 22 Pac. 71; In re Estate of Hudson, 63 Cal. 454. See, also, 12 Cal. Jur. 213; 1 Ross on Probate Law & Practice, sec. 544, p. 851.) In the case of Bacon v. Bacon, supra, the court, speaking of the California section identical to our section 10328, said: “The provision may reasonably be interpreted to mean no more than that the decree of distribution should have the same force and effect as other final judgments; that is to, say, that it should not be subject to collateral attack, but only to direct attack on appeal, or as otherwise provided by law. This construction was, in effect, given to it by the decision in De Pedrorena v. Superior Court, 80 Cal. 144, 22 Pac. 71.” That case in effect declared that the section does not exclude any form of *398 direct attack. Such interpretation makes it possible to read the two statutes (secs. 9187 and 10328, supra) together and to harmonize them. In the ease of State ex rel. Daly v. Dryburgh, 62 Mont. 36, 203 Pac. 508, this court said: “Where one statute deals with a subject in general and comprehensive terms, and another deals with a part of the same subject in a more minute and definite way, the two must be read together and harmonized if possible.” (See, also, Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454; Reagan v. Boyd, 59 Mont. 453, 197 Pac. 832; Langston v. Currie, 95 Mont. 57, 26 Pac. (2d) 160.) Upon the facts presented by relator in his petition of February 27, 1933, the respondent court was not in error in assuming jurisdiction under section 9187 to set aside the original decree of distribution. The record indicates that the facts subsequently presented by Fousek in his petition so altered the situation as to convince the court that, in view of all the circumstances, it did not have jurisdiction to make the second order and decree. • Respondent eourt contends that, if it did have jurisdiction to make the second order and decree, then by the same token it had jurisdiction to make the third order setting aside the second decree. If Fousek in his petition had pleaded facts so as to bring himself within the purview of section 9187, then the court might properly have made the third order. However, it does not appear in his petition that the second decree was “taken against him through his mistake, inadvertence, surprise, or excusable neglect.” The whole tenor of the petition is to the effect that the court did not have jurisdiction to make the second decree. As we have already indicated, under section 9187 the court did have jurisdiction to make that decree. Fousek alleges that he was not given notice of the proceedings wherein the second decree was entered. He, having bought the interest of one of the heirs in the state at sheriff’s sale, was entitled only to the notice required to be given to *399 the heir to whose rights he succeeded by purchase. It appears from the record that the notice was given that is required by law (sec. 10330, Rev. Codes 1921) ; that is, notice “by posting or publication, as the court or judge may direct.” The law does not require personal notice to heirs, but only notice by posting or publication. In this instance, however, the -court not only ordered posting, but ordered in addition thereto that the heirs be personally served with notice, which was done. The decree could not be set aside because of lack of personal notice to Fousek, or because the heirs did not have knowledge of the proceedings, if the notice required by law was given. (Daly v. Pennie, 86 Cal. 552, 25 Pac. 67, 21 Am. St. Rep. 61; William Hill Co. v. Lawler, 116 Cal. 359, 48 Pac. 323. Compare State ex rel. Floyd v. District Court, 41 Mont. 357, 109 Pac. 438; In re Davis’ Estate, 35 Mont. 273, 88 Pac. 957, 958.) “The notice required in probate proceedings serves the purpose of a summons in ordinary actions.” (In re Davis’ Estate, supra.) Fousek also alleged in his petition that relator, in seeking to have the original decree vacated, acted with the intent to cheat, defraud and deprive him of his interest in the property. Even if it be conceded that this was a sufficient allegation of fraud (a point which we do not decide), still the court had no power to make the third order upon such grounds. Section 9187, supra, does not provide for vacating a judgment upon the ground of fraud. If it was the desire of Fousek to attack the second decree upon the ground of fraud or other irregularity, his remedy was by means of a suit in equity. (Bullard v. Zimmerman, 82 Mont. 434, 268 Pac. 512; Bullard v. Zimmerman, 88 Mont. 271, 292 Pac. 730; Kirby v. Hoeh, 94 Mont. 218, 21 Pac. (2d) 732; Bacon v. Bacon, supra; In re Estate of Hudson, supra.) A perusal of the whole record and a consideration of the contentions and brief of the respondents leads to the inescapable conclusion that the trial court in reality did not consider the Fousek petition as an original or independent application under section 9187, Revised Codes 1921, but that *400 it did decide that it did not have jurisdiction and right to hear and grant the O’Neil petition to set aside the original decree. In this it was in error. As we have heretofore explained, it did have jurisdiction to entertain and decide that application on the merits. Therefore the court’s final or third order, entered on February 8, 1934, in effect constituted a refusal to consider the O’Neil petition to set aside the original decree. Under this view of the case, we have a situation similar to that presented in the case of State ex rel. Brophy v. District Court, 95 Mont. 479, 27 Pac. (2d) 509, wherein the court refused to consider a petition or motion to set aside a final account of an administrator. Let the writ issue. MR. Chief Justioe Callaway and Assooiate Justioes Matthews and ANDERSON concur.