Myers v. Davis

Day, Cii. J.

*328

-j JUDGMKNT: tavk^admüíistrator.

*327 I. It is claimed by appellant that the county court had no jurisdiction of the subject matter, because no statement of all the claims against the estate was made to the *328 court, and no account was rendered of the disposition made of the personal estate. Section 2375 of the Revision provided that applications for the sale of a sufficient portion of the real estate to pay off the debts and charges upon the estate can be made only after a full statement of all the claims against the estate, and rendering a full account of the disposition made of the personal estate. The Code of 1851 contained the same provision. The law in force prior to the Code of 1851, Revised Statutes of 1843, chapter 162, sub-chapter 10, section 3, provides that in order to obtain a license for the sale of real estate the executor or administrator should present to the court a petition setting . forth the amount of debts dxe from the deceased, as nearly as . they can be ascei’tained, and the amount of charges of adminis- ' tration, and the value of the personal estate. This provision of the statute of 1843 was construed in Morrow v. Weed, 4 Iowa, 77 . The administrator filed his petition, praying for ’.leave to sell real estate, and representing that the indebtedness of the estate amounted to about $1,500, and charges of administration to between $150 and $200, and that the personal estate' was insufficient to discharge that amount. It was objected - to the sale that the administrator’s petition did not show the value of the personal estate. The court held that the sale wras -.not void because of the defect in the petition, and, on page .. 89, employed the following language: “When a court has jurisdiction it has a right to decide every question which occured in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every ¡other court. * * ' * The question then is, when : does jurisdiction arise, or what gives jurisdiction? The answer is: First, the law; second, a petition, or whatever stands in its place; third, notice, when such is required. * * * • * If there be a petition, or the proper matter of that nature to call into action the power or jurisdiction of the court, the sufficiency of it cannot be called in question collaterally. This is for the appellate power only.” This decision was , made, it must be observed, under a statute which points out , specifically what the petition must contain, whilst section 5375 *329 of the. Bevision makes no provision as to what the petition must state. The petition in this case - stated that there were debts against the estate amounting to about one hundred dollars; that there were no personal effects liable to administration, and that in order to pay the debts certain of the real estate must be sold. This petition. was sufficient to give the court jurisdiction over the subject, and to authorize it to act in the premises. If the court ordered the sale without a more full statement of all the claims against the estate, and a full account of the disposition made of the personal estate, the naos-; that can be said is that it acted erroneously/and its judgment might have been reversed on appeal. It cannot be admitted that its judgment can be collaterally impeached for want of jurisdiction over the subject matter. The foregoing discussion disposes also of the objection that the petition was not verified by oath. The statute does not require it to be so verified; and if it did, the want of verification would not affect the jurisdiction. McC raney v. McCraney, 5 Iowa, 232 (254).

2._._. : notice. IT. It is next objected that no legal notice was served on the parties adversely interested, that the notice simply recited that a petition will be presented to the county 00111.(;5 an¿ contains no statement as to what will be asked, nor a description of the property sought to be sold. But the notice was attached and made reference to the petition, which contained a full description of the property involved, and a statement of what was asked. Taken in connection with the petition the notice was sufficiently specific.

8servTco oFño: tico. III. It is next claimed that the service of the notice is not sufficient to confer jurisdiction. 1. It is said no parties aré name<:^ orL w^10m ^ie notice was served. The notice named specifically the persons to whom it is addressed, and the return states the petition and notice were served upon the widow and minor heirs named therein. This sufficiently specifies the parties served. 2. It is objected that the notice was read in the presence and hearing of the parties served, and not to them; that no copy of the notice was delivered or offered,- and that no service was made on the father, mother or guardian of the minors, they being under fourteen *330 years of age. It may be admitted that the service in this caso was defective, and that, upon appeal, the judgment would have been set aside. And yet it is not a case of no service, rendering the judgment of the court void for want of jurisdiction, and liable to collateral attack. In Morrow v. Weed, supra, it is said: “If there be a notice or publication, or whatever of this nature the law requires in reference to persons or other matters, its sufficiency cannot be questioned collaterally.”

When ther'e is a service insufficient only in the manner of making it, a question of jurisdiction is raised which the court must decide, and if it does so erroneously the judgment, though voidable, is binding until reversed and corrected on appeal. Bonsall v. Isett, 14 Iowa, 309 . See, also, Pursley v. Hayes, 22 Iowa, 11 (37); Shawhan v. Loffer, 24 Iowa, 217 (226); Mooney v. Maas, 22 Iowa, 380 (384).

4.. — :-: ñtfní!iau a IY. It is next objected that the sale is void because no guardian axl litem was appointed for the minors. There is no express provision of the statute requiring the appointment of a guardian ad Utem in such cases. But, if it should be conceded that a guardian ad Utem should have been appointed, the failure to make such appointment constitutes a mere irregularity. It does not render the judgment void. See Drake v. Hanshaw, at the present term.

Aeeikmed.