Stanley v. Noble

Seevers, Ch. J. , sSeoireai ttoiflrafjrais diction. I. Adam Eickett died intestate in 1857. Mary Eickett, his widow, shortly after his death was appointed of the estate. She resinned in 1865, and one Abbot was appointed administrator de boms non. He filed a petition asking leave to ge|j ^ rea-^ es^a^e for the payment of debts. Such a sale was ordered, and the deed to the purchaser approved by the court in 1866. The defendant claims under such conveyance the case can be best disposed of by considering the objections made to such title. It is conceded by counsel for the appellants, if the probate court had jurisdiction when the sale of the real estate was ordered, the title of the defendants cannot, at this late day, be set aside in this collateral proceeding. It is said an application to sell real estate by an administrator can only be made after a full statement of all claims against the estate, and after rendering a full account of the [668] disposition of the personal estate; Rev., § 2375. To say the least, it is doubtful whether this is • a jurisdictional question. Cooper v. Sunderland, 3 Iowa, 114; Morrow v. Weed, 4 Id., 77. Rut.waving this point, it appears quite satisfactorily from the record that it was alleged in the petition asking an order to sell, that no personal estate had come into the hands of the administrator de horns non, and also that there were debts remaining unpaid. This, clearly, was sufficient under the statute; the petition in other respects being sufficient to invoke and give the court jurisdiction of the subject-matter. 2>_._. : II. Conceding the court had jurisdiction of the subject-matter, it‘"is said that it did not have jurisdiction of the plaintiffs, because they were not named in the petition. The petition wras entitled as follows: “W. S. M. Abbot, adm’r de honis non of the estate of Adam Rickett, deceased, vs.” etc. Petition to sell land. “The unknown heirs of said estate.” This was followed by allegations as to the subject-matter. In Read et al. v. Howe et al., 39 Iowa, 553, the court said: “ The subject-matter is within the jurisdiction of the court. That the law confers. This jurisdiction is called into exercise by -the filing of a petition and the service of a notice. The court, of necessity, must determine the sufficiency of the petition.” The court determined the petition to be sufficient, and this determination cannot be attacked in this collateral proceeding. Besides this, how are we to- know that the statement that the heirs were unknown was not all the plaintiff could truthfully state. It is said the record of the court at least showed the name of the widow of the deceased. But this is immaterial, as it was for - the court to determine whether the heirs were unknown. In the ruling made, the court may have committed a grave error, but its jurisdiction was in no manner affected thereby. It is suggested no guardian at litem was appointed for the defendants. The conclusive reply to this is, there is no evidence in the record tending to show they were minors. [669] Notice: jurisIII. It is objected tbe notice is insufficient to give tbe court jurisdiction: Because, first — it means a different decedent. The notice described tbe deceased as Adam “Ricketts.” The name of the deceased, in some places in tbe record, is spelled thus: “Ricket;” in others, “Rickett;” and in tbe petition to sell, and notice, “ Ricketts.” In tbe order of tbe court directing notice to be given, tbe name is spelled as “Ricket,” and also as “Ricketts.” Under these circumstances, we think tbe designation of the deceased in tbe notice was sufficient. Tbe second objection to the notice is that no land is described therein, and tbe third that it is directed to no defendant by name. The notice was directed to “tbe heirs and legal representatives” of said estate, and did not describe specifically any land, but stated application bad been made to sell tbe land belonging to tbe estate. Tbe statute then in force provided the notice should be such as tbe court may prescribe, and must be given to all persons interested in tbe real estate. Revision, § 2376. In Shawhan v. Loffer, 24 Iowa, 217, the notice was directed: “ To all interested in the estate of Benj. P. Shawhan,” and such designation of tbe defendants was held sufficient upon tbe principle well stated by Beck, J., as follows: “ If it appears there was a notice, though defective, or tbe service thereof be imperfect, neither in strict compliance with tbe directions of tbe statute, and tbe court determined in favor of tbe sufficiency of such notice and service, which is shown upon tbe record, even though such determination was erroneous, tbe judgment of tbe court will not be held void in a collateral proceeding; it is competent for tbe court to determine tbe sufficiency of the notice and service.” Now, in tbe case at bar, tbe court ordered “ due notice to all concerned of the pendency of tbe petition ” should be given, and in relation thereto tbe court found and entered of record: “And it appearing to the satisfaction of tbe court that service ot notice of tbe pendency of this application has been made [670] pursuant to the direction of this court heretofore made,” etc. Here is found an express determination of the sufficiency of the notice and service thereof. Under the rule announced in Shawhan v. Loffer, and the authorities there cited, such determination is conclusive, and cannot be attacked in a collateral proceeding. 4>____ Kme o!uris°-f diction. IY. The order of sale was made nine years or more after the death of Adam Rickett, and we are aware of the ruling in McCrary v. Tasker, 41 Iowa, 255. But that was an appeal from the decision of the court refusing to majie ^ or<3eri it Was made, therefore, in a direct proceeding. Here the question is whether the court had the jurisdiction and power to make or refuse an order to sell, and not whether it was erroneous. To our minds the question whether the order was made in due time is not jurisdictional, but at most simply erroneous. Affirmed.