Rutenic v. Hamakar

Mr. Justice Moore,

after stating the facts in the foregoing language, delivered the opinion of' the court.

1. It is contended by defendants’ counsel that the complaint does not state facts sufficient to constitute a cause of action, and that such defect was not waived by answering over after a demurrer interposed on that ground had been overruled. It is argued that the allegation of Hamakar’s removal is insufficient, because it does not aver that the county court had jurisdiction of the subject-matter or of the person of the administrator whose letters are claimed to have been revoked. The allegation thus challenged is as follows: “That on the seventh day of July, 1896, the said county court made and entered a certain order or decree removing said J. W. Hamakar as administrator of the estate of said W. H. Mills, deceased, revoking his letters of administration, and further ordering and decreeing that said J. W. Hamakar, administrator as aforesaid, shall, upon demand from his successor in office, turn over to him all property and moneys belonging to said estate. ’ ’ The statute, in prescribing the manner of alleging a decision of an inferior tribunal, provides that, “in pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made”: Hill’s Ann. *450 Laws, § 86. Notwithstanding this provision of the statute, it has been held that, in pleading the judgment of an inferior tribunal, the facts conferring jurisdiction must be alleged: Dick v. Wilson, 10 Or. 490 ; Page v. Smith, 13 Or. 410 ( 10 Pac. 833 ); Fisher v. Kelly, 30 Or. 1 ( 46 Pac. 146 ). This rule is evidently based upon the ground that no presumption will be indulged in favor of the jurisdiction of a court of inferior or limited power; thereby rendering it necessary, in alleging the judgment of such a court, to set forth in a pleading all the facts requisite to show that jiuisdiction of the subject-matter had been conferred by a grant of sovereign power, and of the person in the manner prescribed by law: Willits v. Walter, 32 Or. 411 ( 52 Pac. 24 ). In a judgment rendered by a court of general and superior jurisdiction, however, every fact necessary to confer jurisdiction will be presumed in order to support the validity of the judgment: Bruckman v. Taussig, 7 Colo. 561 ( 5 Pac. 152 ); Pennington v. Gibson, 59 U. S. (16 How.) 65 ; Springsteene v. Gillett, 30 Hun, 260 ; Spaulding v. Baldwin, 31 Ind. 376 ; Hansford v. Van Auken, 79 Ind. 302 ; Lathrop v. Stuart, 5 McLean, 167 (Fed. Cas. No. 8,113) ; Holmes v. Campbell, 12 Minn. 221 ; Rogers v. Odell, 39 N. H. 452; Wilbur v. Abbot, 58 N. H. 272. The county court, in probate matters, is a court of general and superior jurisdiction [Tustin v. Gaunt, 4 Or. 305 ; Farley v. Parker, 6 Or. 105 ( 25 Am. Rep. 504 ); Monastes v. Catlin, 6 Or. 119 ] ; and, as it is unnecessary to allege a fact which the law will presume [Bliss, Code Pl. (3 ed.) § 175; Boone, Code PL § 11;. Chit. Pl. *221], the plaintiff was not required to allege that said court had secured jurisdiction of the person and subject-matter, so that the complaint is not vulnerable to the objection that it does not state facts sufficient to constitute a cause of action, notwithstanding it failed to allege that the order removing the administrator was “duly” given or made; such qualifying word being required only in pleading the determination of a court or officer of special jurisdiction: Hill’s Ann. Laws, § 86.

2. It is insisted that the county court is without authority to entertain a suit for an accounting; that the personal ap *451 pearance of Hamakar therein as alleged in the complaint did not confer upon it jurisdiction of the subject-matter, and hence the complaint fails to state facts sufficient to constitute a cause of action. It is the duty of every executor or administrator, in April and October of each year, until the administration is completed and he is discharged from his trust to render an account, verified by his oath, and file the same with the clerk, showing the amount of money received and expended by him, etc.: Hill’s Ann. Laws, § 1170, as amended February 25, 1895 (Laws, 1895, p. 89). If he fails to comply with this requirement, he may be cited to appear before the county court and ordered to file an account; and if he neglect to appear when cited, or to file the account as required, he may be punished for a contempt: Hill’s Ann. Laws, § 1171. The county court is a court of record, having general jurisdiction to be defined, limited, and regulated by law: Const. Or. Art. VII, § 12. Such court has exclusive original jurisdiction to direct and control the conduct and to settle the accounts of executors, administrators, and guardians: Hill’s Ann. Laws, §. 895, subd. 3. The mode of proceeding in the administration of estates is in the nature of a suit in equity, as distinguished from an action at law; the county court exercising its power by means of a.citation to the party, and securing jurisdiction of the subject-matter by means of a verified petition, enforcing-its determination by orders and decrees: Hill’s Ann. Laws, § 1078, subds. 1, 2, 4; Wright v. Edwards, 10 Or. 298, 301 ; Plunkett’s Estate, 33 Or. 414 ( 54 Pac. 152 ). The county court is not, in the strict sense of the term, a court of equity, even in probate matters [Richardson’s Guardianship, 39 Or. 246 ( 64 Pac. 390 )] ; but the proceedings therein in the administration of estates are so analogous thereto that the defendant must have understood what was intended by the averment in the complaint that, on the hearing in a suit for an accounting-brought by Miller against him, the county court found that he had in his possession the sum of $2,845.59 belonging to said estate. If the allegation were not so understood, the remedy *452 was by motion to make the complaint more definite and certain.

3. It is maintained that, if Miller’s right is based on the alleged judgment of the county court, the complaint fails to state facts sufficient to constitute a cause of action, because it does not aver that the judgment has not been paid, or that it is still in force and effect, and that, if the right is founded on an alleged breach of the condition of the bond, the complaint is subject to the same objection, because it does not aver that the principal has in his possession any property or money belonging to said estate. In Bailey v. Wilson, 34 Or. 186 ( 55 Pac. 973 ), it was held that a complaint upon an insurance agent’s bond, alleging that the principal had received various sums which he had failed to pay over, and that upon an accounting and settlement with reference thereto a specified sum was ascertained and determined to be due, which the principal promised and agreed to pay, does not declare upon an account stated, but upon a claim for damages resulting from a breach of the bond. The rule thus announced must control this case, which is not an action on a judgment, but on an alleged breach of the conditions of a bond.

4. The complaint alleges that the county court having found that Hamakar had in his possession the sum of $2,845.59, Miller on September 25, 1896, demanded of him all the money in his possession belonging to said estate, but he refused to comply therewith, and still neglects to pay over to him any part thereof, in violation of the order of said court. In Judge of Probate v. Couch, 59 N. H. 39, it was held that, to maintain an action on a probate bond, it was necessary to aver and prove a breach of the bond, by a neglect or refusal to comply with the order of the probate court to account. The complaint in the case at bar does not allege that Hamakar was required by order of the county court to pay to Miller said sum of money; but, it having averred that his refusal to do so violated the order of said court, it is reasonably inferable from the complaint that such order was made.

5. It is maintained that the complaint fails to state facts *453 sufficient to constitute a cause of action, because it does not allege that at the commencement of this action either of the defendants had in his possession or under his control any property or money belonging to the estate of W. H. Mills, deceased. This action having been commenced May 19, 1899, it is alleged in the complaint that Hamakar was removed as administrator July 7, 1896, and that at the hearing in the county court September 22, 1896, it was found that he had in his possession the sum of $2,845.59, no part of which had been paid over to Miller as his successor. Hamakar secured this money by virtue of his trust, in view of which we think the complaint shows that it was in his possession at the time this action was instituted.

6. It is also contended that the complaint fails to state facts sufficient to constitute a cause of action, because it does not clearly allege a breach of the bond. The conditions of that obligation are that it should be void if Hamakar faithfully performed his trust as administrator according to law. The county court having removed him as administrator, his authority to act for the estate was withdrawn: Knight v. Hamaker, 33 Or. 154 ( 54 Pac. 277, 659 ). The power to remove an executor or administrator conferred by the statute (Hill’s Ann. Laws, § 1094), necessarily carries with it, as an incident thereof, the authority to require him to render an account, and to pay over all moneys in his hands and to deliver all property in his possession belonging to the estate to his successor; and any failure to comply therewith is a violation of the provisions of law, and a breach of the conditions of his bond. The complaint alleges that the order removing Hamakar required him, upon demand, to turn over to his successor all property and moneys belonging to said estate; that Miller was appointed as such successor, and, having duly qualified as administrator, he demanded of Hamakar all the money in his possession belonging to said estate, but he refused and still neglects to pay any part thereof. This sufficiently alleges a breach of the condition of the bond, and shows that the complaint states facts sufficient to constitute a cause of action.

*454

7. It is contended that in an action on a bond, to recover damages for a breach thereof, the principal and sureties may interpose as a defense thereto a counterclaim in favor of the principal, and hence the court erred in sustaining a demurrer to the third separate defense in the original answer, setting up a counterclaim. Whatever the rule of law may be in respect to the defense insisted upon, it can have no application to this case, for the 'defendants, having answered over after the demurrer was sustained, waived any error that may have been committed thereby: Wells v. Applegate, 12 Or. 208 ( 6 Pac. 770 ); Olds v. Cary, 13 Or. 362 ( 10 Pac. 786 ).

8. It is maintained that the court erred in sustaining a demurrer to the second separate defense in the amended answer. It will be remembered that it was there alleged that Hamakar’s claim of $2,500 against said estate having been allowed, upon which he was paid the sum of $500, he was thereafter appointed administrator, and secured an order to sell the real property of the estate, upon his petition therefor, showing that it was indebted to him in said sum, with interest, and also owed several minor demands,, not exceeding $100, which represented the entire indebtedness of the estate, in pursuance of which he sold said property and the sale was confirmed; that on July 7, 1896, he was removed as administrator, and eight days thereafter applied the money received on account of said sale in payment of his claim, in the extinguishment of which the estate was benefited; that such application of the money was not credited to him, nor was the payment thereof adjudicated in the alleged settlement made by the county court September 22, 1896; and that since said sale no money has come into his hands belonging to said estate, nor is he indebted thereto. It will be seen by these averments that Hamakar, after his removal, applied the money arising from said sale to the payment of his own claim, and did not pay any other claims. He alleges that he is not indebted to the estate, though the money received from said sale, as will hereinafter be shown, was more than sufficient to satisfy his claim against the estate. When his letters of administration' were revoked, *455 his authority to act for the estate terminated, and he was divested of all power to pay any claim against it. When he was appointed administrator he became the agent of the county court for the purpose of executing the trust reposed in him, thereby making it obligatory on him to obey all its lawful orders made in administering the estate. His authority being thus dependent upon the sanction of the county court, it follows that when he was removed, and his letters revoked, his power ceased, and any act thereafter performed by him in attempting to administer upon the estate was an absolute nullity: Levy v. Riley, 4 Or. 392 .

9. If it be assumed that the averments of new matter in the amended answer, to which the demurrer was directed, and which, in substance, had been averred in the original answer as a counterclaim, can be treated as constituting a defense, we do not think the allegations are sufficient for that purpose. A part of the amended answer, not challenged by the demurrer, contained the following concession: “But admit that said Hamakar refuses and neglects to pay over to.said John F. Miller, administrator as aforesaid, and plaintiff herein, said sum of $2,845.59, or any part thereof.” This admission may be regarded as a correct statement of the sum received by Hamakar on account of the sale of the real property belonging to the estate. The interest on $2,500 at eight per cent, from November 14, 1891, when Hamakar’s claim for that sum was allowed, to August 10, 1892, when he was paid $500, is the sum of $147.77, which added to the principal, makes $2,647.77, and, subtracting the payment, leaves $2,147.77. The interest on the new principal, at the same rate, from the date of such payment to July 15, 1896, when it is alleged that Hamakar applied the money in his hands to the payment of his claim, is $675.75, and the amount then due him was $2,823.02, after paying which from the money received from the sale of the land he had remaining only $22.57, not including any sum on account of the expenses incurred in the administration of the estate; thus showing that the estate was insolvent, and Hamakar not entitled, in any event, to the payment of his claim *456 in full. • In an action by an executor or administrator of a solvent estate, it has been held that the defendant may set off any claim that he may have had against the testator or intestate: Hic ks v. National Bank of N. L. 168 Pa. St. 638 ( 32 Atl. 63 ); Steinmeyer v. Ewalt St. Bridge Co. 189 Pa. St. 145 ( 42 Atl. 132 ). Such a rule cannot be invoked in case of an insolvent estate, however, for to permit it to have that effect would disturb the ratable distribution of the fund arising from the sale of the decedent’s property to which each of his creditors is entitled. For these reasons no error was committed in sustaining the demurrer.

10. It is contended that the court erred in admitting in evidence a transcript of the alleged decree of the county court settling Hamakar’s account, and finding that he had in his possession the sum of $2,845.59, belonging to said estate, which he refused to turn over to his successor. It is argued that in a suit on an administrator’s bond no recovery can be had unless it is shown that the administrator was cited to render an account; citing Nelson v. Jaques, 1 Me. 139 ; Court of Probate v. Eddy, 8 R. I. 339. The decree in question recites that Hamakar filed an answer to Miller’s petition for an order requiring him to account, appeared in person in open court at the hearing thereon, but declined further to attend the trial, whereupon the court, having taken testimony, made the finding of which the appellants complain. The object of a citation in probate proceedings is to secure the attendance of parties, but, if this is accomplished by a voluntary appearance, the object of the statute is fully subserved. In Adams v. Petrain, 11 Or. 304 ( 3 Pac. 163 ), it was held that no action can be maintained on an administrator’s bond until after the settlement of his accounts in the county court, and such is the effect of the decision to which our attention has been called: Gilbert v. Duncan, 65 Me. 469 . Hamakar having declined to take any part in the examination of his accounts, it was the duty of the court to ascertain the condition thereof as best it could.

11. For the purpose of this duty his report filed April 7, 1896, showing that he had in his possession on that day money *457 belonging to tbe estate in the sum of $2,845.59, formed the basis of the court’s finding. In Herren’s Estate, 40 Or. 90 ( 66 Pac. 688 ) — a proceeding by an administrator de bonis non against the representative and sureties of a deceased administrator to compel an accounting, — it appeared from the last report of the prior1 administrator that he had in his hands a given sum of money; and it was held that the burden of proof was on the defendants to show the proper administration of such fund, and that the court’s finding thereon furnished prima facie evidence against the sureties as to the correctness thereof. To the same effect is Bellinger v. Thompson, 26 Or. 320, 347 ( 37 Pac. 714 , 40 Pac. 229 ), and Thompson v. Dekum, 32 Or. 506 ( 52 Pac. 517, 755 ).

12. The prayer for judgment did not include a demand for interest, but the court awarded therefor the sum of $412.10, and it is claimed that error was thereby committed. “The failure to ask relief to which it is apparent the party is entitled,” say the editors of the Encyclopedia of Pleading and Practice (Vol. XVI, p. 795b), “will not, as a general rule, have the effect to deprive him of the relief to which he is entitled in fact; and especially is this so where the defendant has appeared and answered.” In Carpenter v. Sheldon, 22 Ind. 259 , the complaint prayed judgment for the sum due at the first term of the court after the suit was instituted, but the judgment was not rendered until a subsequent term, and then given for the sum originally demanded, with accrued interest; and it was held that the complaint would be deemed amended so as to demand judgment for the sum awarded. Hamakar having retained this money, which came into his hands by virtue of his trust, the estate was entitled to interest thereon; and the defendants having answered the complaint, the court was authorized to give judgment for the interest: Jones v. Butler, 30 Barb. 641 ; Hopkins v. Lane, 2 Hun. 38 ; Marquat v. Marquat, 12 N. Y. 336 .

Other errors are assigned, but, not deeming them important, the judgment is affirmed. Aeeirmed.