Pattison v. Hogston, Admr.

This is an action by Mary A. Pattison, Eva M. Cabe, and James F. Hogston to enjoin the administrator of the estate of James S. Hogston from selling certain real estate pursuant to an order of sale theretofore made by the Grant Circuit Court.

James S. Hogston died intestate in 1921, the owner of certain real estate in Grant county. The Grant Trust and Savings Company, having been appointed administrator of his estate, filed its petition to sell the said real estate for the purpose of paying debts. The decedent left surviving as his only heirs, Mary A. Pattison, Eva M. Cabe, James F. Hogston, Alfred Hogston, and Richard Hogston, each of whom became the owner of an undivided one-fifth interest in said land. The above-named heirs of the decedent were made defendants in the proceedings to sell. The administrator in its petition for sale alleged it was necessary to sell the real estate for the purpose of paying certain designated debts which were liens on the real estate. Among the debts for the payment of which the administrator asked that the real estate be sold were five judgments, one in favor of Emma Jaqua, one in favor of Emma Frelof Jaqua, one in favor of Frelof Jaqua, and two in favor of Richard Hogston.

The five heirs of the decedent were made defendants in the proceeding of the administrator to sell. None of the lienholders were made defendants. Mary Pattison, Eva M. Cabe, and James 1. F. Hogston appeared and filed a "partial" answer. They also filed a cross-complaint, wherein they attempted to attack the validity of the above-mentioned judgments. The defendants to this cross-complaint were the persons in whose favor the judgments had been rendered, the administrator not being a party thereto. The cross-complainants filed an affidavit for change of judge because of the bias and prejudice of the regular judge and a special judge was appointed and assumed jurisdiction and heard the petition to sell and the issue presented by the cross-complaint. There was an interlocutory decree ordering the real estate sold subject to the several liens. There was also a judgment against the cross-complainants on their cross-complaint. From that judgment, the cross-complainants appealed. The only question raised in that appeal related to the judgment on the cross-complaint, wherein it was adjudged that the judgments mentioned in the cross-complaint were valid. No question was raised in that appeal concerning the order of sale. That judgment was affirmed, and the validity of the five judgments sustained. See Pattison v. Grant Trust, etc., Co. (1924), 195 Ind. 313,144 N.E. 26. After the affirmance of that judgment, the administrator filed its petition to modify the order of sale so that the land could be sold free of the liens instead of being sold subject thereto. With this petition, the administrator filed an appraisement of the real estate and the written consent of the several lienholders consenting that the court might fix the amount and priority of their liens and that their respective liens be transferred to the proceeds arising from the sale of the real estate. Appellants appeared to this application and filed written objections to the modification of the order of sale, on the ground that the original order of sale was void because no appraisement of the real estate had been made at or before the making of such order, and for the further reason that the court had no authority to allow an appraisement to be filed after the affirmance of the judgment, or, on the appearance and consent of the lienholders, to order the land sold free of liens. No objection was made to the regular judge of the court hearing the application of the administrator for a modification of the order of sale, but the same was submitted to the court, the regular judge presiding, and the order of sale modified. That order is in full force and effect, unappealed from and unreversed. This is a collateral attack on the order of sale as modified and must fail unless that order is absolutely void.

At this point, we call attention to the fact that the record is silent as to whether an inventory and appraisement of the real estate was made and filed at the time of or before the 2. court made the original order of sale. If the filing of an appraisement was necessary, as appellants contend, in order to give the court jurisdiction to make the order of sale, we ought to presume, in the absence of any evidence, that all the jurisdictional steps were taken and that the court had jurisdiction to make the order. The fact that an appraisement was filed with the petition to modify will not overthrow the presumption that the court had jurisdiction when it made the original order.

Where an administrator asks to have land sold subject to liens, the holders of the liens need not be made defendants. If such an order has been made and the administrator thereafter 3-5. discovers that it would be advantageous to have the order modified so that the land can be sold free from liens, a petition can be filed for that purpose. If the lienholders appear and file their consent, as was done in the instant case, they need not be made defendants in the original petition or in the petition to modify.

In Hall v. Price, Admr. (1895), 141 Ind. 576, 40 N.E. 1084, an administrator procured an order to sell real estate subject to liens. At a subsequent term, the court, on petition of the administrator, ordered the sale to be made free of liens. Later, one defendant who had not been served with process appeared and filed answer asking that the court order the land sold as asked by the administrator, and asked the court to fix the priority of the liens. It was there contended that the second order was invalid because of the first order of sale. In disposing of this contention, the court said: "The first order of sale, procured by appellee, was not a final judgment, but was an interlocutory order, and was subject to be vacated, set aside, modified or changed on petition or motion, until the real estate was sold under such order, the sale confirmed, and until the end of the term of court at which such sale was confirmed, during all of which time the proceedings were in fieri."

Is the order of the court modifying the order of sale void or merely voidable because it was made by the regular judge and not by a special judge? The issues presented by the original application of the administrator for the sale of the real estate and the cross-complaint filed thereto were not whether the real estate should be sold for the payment of debts other than the five judgments, but whether any real estate should be sold for the payment of the five judgments, the validity of which appellants challenged by their partial answer and cross-complaint. The answer and cross-complaint of appellants neither raised nor attempted to raise any question other than the validity of the five judgments and the necessity of selling any real estate to pay them. Indeed, appellants, in their answer, asked that so much of the real estate be sold as would be necessary to satisfy the other debts of the estate and, in open court, agreed that if the judgments mentioned should be finally held to be valid and subsisting judgments no further opposition to their payment would be made in any form, either by action to review or to enjoin enforcement or otherwise. This was the situation when the administrator filed its petition to modify the order of sale. Appellants herein, by their answer, had conceded the real estate should be sold to pay debts and had asked that enough of it be sold to pay all debts except the five judgments, and had agreed in open court that if those judgments should be held valid, no further opposition to their payment would be made by appellants.

When the petition to modify was filed, appellants appeared and filed written objections challenging the right of the court to make the order for the reasons hereinbefore stated. No 6. objection was made to the regular judge hearing the petition to modify. Appellants made no claim that the property should be sold subject to the liens in accordance with the original order of the court, and we think it may be fairly inferred from the record that appellants, by failing to object to the regular judge acting in that matter, consented to his acting. The regular judge was not disqualified because of interest or relationship. The court, as distinguished from the judge, had jurisdiction of the subject-matter and of the parties, and appellants having raised no question below concerning the right of the regular judge to act, could not have presented such question for the first time on appeal, by the claim that the regular judge had no "jurisdiction" of the matter because a change of judge had been taken in the proceedings prior to the hearing on the petition to sell and on the cross-complaint asking that the five judgments be declared void. If appellants had objected to the regular judge acting, and this was an appeal in that case, and the act of the court in overruling the objection had been properly presented in this court, we would be required to pass on the correctness of such ruling.

In Carr v. Duhme (1906), 167 Ind. 76, 78 N.E. 322, 10 Ann. Cas. 697, it was held that where the disqualification of the judge was disclosed by the record and known to the parties, and in the absence of a statute relating to the disqualification of judges and prohibiting them from acting, their actions were governed by common-law principles, and that the disqualification of the judge could not be raised for the first time on appeal. The court said: "In cases where the disqualification of the judge renders the proceedings voidable merely and not void, it may be waived by consent of parties. . . . It was appellees' duty, if they desired to object to his acting because of interest, to make such objection at the earliest opportunity, and thereby prevent the accumulation of needless costs and the attainment of a fruitless result. If a party, knowing of a valid objection to a proceeding, neglects to avail himself of it, and stands by or participates therein until a result is reached adverse to his interests, it is but justice that he should bear the consequences which his own folly has suffered to occur."

In Board, etc., v. Justice (1892), 133 Ind. 89, 30 N.E. 1085, 36 Am. St. 528, the court said: "The decided weight of authority seems to establish the proposition, that, at common law, the acts of a disqualified judge are not mere nullities; they are liable to be avoided or reversed on proper application, but can not be impeached collaterally. . . . In many of the cases cited as sustaining the proposition that the judgments rendered by a disqualified tribunal are void, it will be found, upon examination, that the judgments so rendered were attacked on appeal, and the language must be construed as applicable to the case before the court."

In Whitesell v. Strickler (1906), 167 Ind. 602, 620, 78 N.E. 845, 119 Am. St. 524, no objection was made to the special judge sitting in the case, nor to the regularity of his appointment. On appeal, the court said: "All such objections will now be deemed waived."

This court, in Evans v. Rutherford (1921),76 Ind. App. 366, 371, 131 N.E. 55, where no objection was made to a special judge assuming jurisdiction, said: "If his authority is not questioned until after a trial is had and a judgment is rendered, all objections, based on the absence of an appointment in conformity with the statute and due qualification, which might have been properly, and possibly successfully made, if timely presented, will be deemed waived."

In Folger v. Barnard (1919), 73 Ind. App. 523, 125 N.E. 460, it was held that all objections to a special judge, not made when he assumes to act will be waived, the court saying: "Appellants' conduct in this matter looks too much like an attempt to gamble on the decision of the court, and, losing the wager, pull down the stakes, which we cannot permit."

In State, ex rel., v. Lane (1916), 184 Ind. 523, 111 N.E. 616, a special judge failed to qualify within the time fixed by the statute which provides that if a special judge fails to qualify within 20 days after appointment, such appointment shall thereupon be held to be vacated. § 451 Burns 1926, Acts 1903 p. 343. After the time fixed by the statute, the special judge qualified and assumed jurisdiction, the parties appeared before him and had the cause set for trial. Later, appellant objected to the jurisdiction of the special judge upon the grounds mentioned and asked for a continuance. It was held that such actions by appellant "amounted to a waiver of his objections to the jurisdiction of the special judge."

The decisions of both the Supreme Court and this court, without an exception, hold that objections to the jurisdiction of the judge to try the case, as distinguished from jurisdiction 7. of the court over the subject-matter, may be waived, and, if not raised in the trial court, cannot be attacked for the first time on appeal, nor in a collateral action. In addition to the authorities heretofore cited, see Case v. State (1854), 5 Ind. 1; Feaster v. Woodfill (1864), 23 Ind. 493;Mitchell v. Smith (1865), 24 Ind. 252; Watts v. State (1870), 33 Ind. 237; Hyatt v. Hyatt (1870), 33 Ind. 309;Winterrowd v. Messick (1871), 37 Ind. 122; Rose v.Allison (1872), 41 Ind. 276; Kennedy v. State (1876),53 Ind. 542; Oppenheim v. Pittsburgh, etc., R. Co. (1882),85 Ind. 471; State, ex rel., v. Murdock (1882), 86 Ind. 124;Mattingly v. Paul (1882), 88 Ind. 95; Adams, Sheriff, v.Gowan (1883), 89 Ind. 358; Board, etc., v. Seaton (1883),90 Ind. 158; Kenney v. Phillipy (1883), 91 Ind. 511; Smurr v. State (1886), 105 Ind. 125, 4 N.E. 445; Bartley v.Phillips (1888), 114 Ind. 189, 16 N.E. 508; Greenwood v.State (1889), 116 Ind. 485, 19 N.E. 333; Bowen v. Swander (1889), 121 Ind. 164, 22 N.E. 725; Lillie v. Trentman (1891),130 Ind. 16, 29 N.E. 405; Lewis v. Albertson (1899),23 Ind. App. 147, 53 N.E. 1071. In the case last cited, the jurisdiction of a special judge was challenged below. The appellant there had appeared before the special judge and later filed demurrers and thereafter objected to his jurisdiction and at the same time asked for a continuance. "This," said the court, "was a waiver of the objection to the jurisdiction."

The action of the regular judge in hearing the application should, in our judgment, be given as much consideration as would be given the acts of a judge de facto, and the rule is that the acts of a judge de facto cannot be overthrown in a collateral attack, nor even in a direct attack, unless the objection is promptly made. Cargar v. Fee (1889), 119 Ind. 536, 21 N.E. 1080; Love v. Jones (1920), 189 Ind. 390, 127 N.E. 549.

In Ripley v. Mutual Home, etc., Assn. (1900), 154 Ind. 155, 56 N.E. 89, an attempt was made on appeal to challenge the jurisdiction of the judge who had tried the case, no objection to his jurisdiction having been made in the trial court. And the court said: "It is settled in this State that the only questions not waived by a failure to present the same in the court below, and that can be presented for the first time on appeal, are that the complaint does not state facts sufficient to constitute a cause of action, and want of jurisdiction over the subject-matter of the action."

Since the sufficiency of a complaint to constitute a cause of action cannot now be challenged for the first time on appeal (Jackson, Rec., v. Rutledge [1919], 188 Ind. 415, 122 8. N.E. 579; Hedekin Land, etc., Co. v. Campbell [1916], 184 Ind. 643, 112 N.E. 97), it follows that the only question which can now be presented for the first time on appeal is jurisdiction over the subject-matter. And it would seem that a question which cannot be presented on appeal should not be cause for holding a judgment void when attacked collaterally.

In Tillman v. State (1909), 58 Fla. 113, 50 So. 675, 138 Am. St. 100, 19 Ann. Cas. 91, the defendant on appeal contended that the trial judge "was without jurisdiction" to preside at the trial of the cause. In disposing of this matter, the court said: "The decided weight of authority is to the effect that where no objection to the authority or jurisdiction of the judge is made in the trial court and no action of any kind taken by the defendant toward raising such question, he will be deemed to have waived such privilege or right by his silence and will not be permitted to raise such question for the first time in the appellate court." Many authorities are cited in support of this statement, among which are Schlungger v. State (1888), 113 Ind. 295, 15 N.E. 269; Ripley v. MutualHome, etc., Assn., supra; Crawford v. Lawrence (1900),154 Ind. 288, 56 N.E. 673; Perry v. Pernet (1905), 165 Ind. 67, 74 N.E. 609, 6 Ann. Cas. 533. For an extended note dealing with waiver of disqualification of judge, see 5 A.L.R. 1588.

Referring to the cases relied on for a reversal, it is sufficient to say they are cases where the question was first raised in the trial court and then on appeal. In Stinson v.State, ex rel. (1869), 32 Ind. 124, the special judge in vacation overruled a motion for a new trial. On appeal, the court said: "The ruling upon the motion for a new trial was made at a time when there was no power to act, and was void," and the cause was reversed for that reason. No other result could have been reached, as courts can only be held at the times designated by law, and business can only be lawfully transacted at a term held in accordance with the provisions of the statute on that subject.Cain v. Goda (1882), 84 Ind. 209.

We hold appellants waived any question as to the right of the regular judge to act on the application to modify the order of sale, and that they cannot in this action challenge the validity of the order made by the regular judge. As was said in Turner,Sheriff, v. Conkey (1892), 132 Ind. 248, 31 N.E. 777, 17 L.R.A. 509, 32 Am. St. 251: "It is quite clear that the refusal of a judge of a superior court to call in another judge does not destroy jurisdiction, although it may be a palpable wrong entitling the injured party to relief in a direct attack."

Judgment affirmed.

Dausman, J., absent.