Schucking v. Merritt

During the administration of the estate of Adolph Sutro, deceased, and one year after the issuance of letters testamentary therein, Theodore Schucking filed a peti-' tion, under section 1664 of the Code of Civil Procedure, praying the court to ascertain and declare the rights of all parties to said estate, etc. The court made an order directing service of notice to all persons interested to appear at a named time and place, in terms as provided in said section of the code; and on November 6, 1902, an order or decree of the court was made and filed ‘1 establishing proof of the service of said notice,” as provided by the section. Up to this point in the proceeding the provisions of the section were beyond question fully complied with. The section, however, provides that “after the expiration of the time limited for appearing” the court shall “enter an order adjudging default of all persons for not appearing, who shall not have appeared as aforesaid”; and an order of that character was made on November 17, 1902, the sufficiency of which is disputed. On November 28, 1902, which was just twenty-two days after the order establishing service of notice, Theodore Schucking filed a “complaint.” To this complaint Kate Nussbaum and six other persons, who are “respondents” herein, filed a demurrer, which was overruled, and thereafter they filed an answer setting up their claims to heirship and distribution. They also stipulated that the proceeding should be tried on October 14, 1903; but upon the case being called on that day respondents moved the court to dismiss the proceedings for want of jurisdiction. This motion was based on two grounds,—1. That the decree establishing default, above referred to, was void for the reasons hereinafter noticed; and 2. Because the complaint of Schucking was filed more than twenty days after the decree establishing proof of service of notice. The court granted the motion on said grounds, and made an order that the proceedings “be and the same are hereby dismissed for want of jurisdiction, and said court refuses to proceed with the trial of said action.” From this order dismissing the proceeding for want of jurisdiction the plaintiffs, Schucking,

1. We do not think that the first point needs much consideration. By the decree in question establishing defaults it is first declared that “all persons” who “have not appeared as aforesaid, and each of them, are hereby ordered, adjudged, and decreed to be in default for not appearing as aforesaid,” etc. This decree is so far a full compliance with the provision of section 1664 on that subject; but it is contended that the decree is rendered nugatory because the court added to it the following: “This order, however, shall be without prejudice to the rights of such persons who have heretofore filed petitions for distribution herein, provided such petitions are now pending and undisposed of and the rights of such petitioners may be determined in such proceedings for distribution but not otherwise.” (There were four petitions for distribution.) This contention is not maintainable. If it could be taken as touching the matter of jurisdiction, still the order was not, as contended by respondents, an order adjudging the default of all persons except those who had filed petitions for distribution; it adjudged the default of “all persons”; and such decree of default was not set aside or affected by the last clause above quoted, which, at best, was a mere expression of the opinion of the court that, notwithstanding the defaults, a person having filed a petition for distribution was not precluded from pressing such petition to a final hearing—a view which is perhaps sanctioned by the cases of In re Oxarart, 78 Cal. 109 , and Brown v. Campbell, 110 Cal. 644 .

2. We do not think that the failure of appellant to file the complaint until after the expiration of twenty days from the decree of service of notice touched the matter of jurisdiction, and therefore we need not consider appellant’s contention that respondents waived the point by appearing generally by demurrer and answer. Any one of the persons named in the petition may file a complaint, although the section evidently does not contemplate that there should be numerous complaints ; and the persons other than the petitioner may naturally assume that the latter, who has inaugurated the proceeding, will proceed by making himself plaintiff. But under the contention here made those other persons, no matter how

The cases cited by respondents are not in conflict with these views. In Smith v. Westerfield, 88 Cal. 374 , it was very properly held that jurisdiction under section 1664 was never acquired by the superior court, because the petition was filed within less than four months after the issuance of the letters of administration, whereas no proceeding under the section can be inaugurated, and of course no jurisdiction acquired, until the expiration of one year after the issuance of letters. What was said in the opinion about probate proceedings being “statutory” was of course correct, and was naturally preliminary to the conclusion that there could be no jurisdiction of a “petition” under section 1664, until after the expiration of the year. In the case at bar jurisdiction was clearly acquired, and the contention is, that the court was ousted of such jurisdiction by the failure of the appellant to strictly comply with the provision which, as before stated, is merely directory. The other eases cited—In re Burton, 93 Cal. 459 ; In re Blythe, 110 Cal. 226 ; Estate of Joseph, 118 Cal. 663 ; Windsor v. McVeigh, 93 U. S. 274 ; and East Tennessee R. R. Co. v. Southern Tel. Co., 112 U. S. 306 —are not in conflict with the views and authorities above stated and referred to. And when jurisdiction has been acquired, the rule applies though the action or proceeding in question be statutory or in rem. Indeed, most of the cases on the subject deal with special statutory actions. Even as to courts of special or inferior jurisdiction, the law as established by the authorities is correctly stated in the American and English Encyclopaedia of Law (p. 1083) to be, that “whenever the jurisdiction has once vested as to the subject-matter the rules which govern its exercise as to the person with respect to process, evidence, etc., aré generally the same as those applicable to courts of general jurisdiction.” (See Cason v. Cason, 31 Miss. 578 ; Davis v. Smith, 58 N. H. 17 ; Matter of the Empire City Bank, 18 N. Y. 199 ; Matter of Clark, 168 N. Y. 427 ; In re Hennessy, 164 N. Y. 393 .)

It is to be noticed that the order of dismissal in the case at bar was based entirely upon the supposed want of jurisdiction; and its affirmance is sought upon that ground alone. If the twenty days and a reasonable time thereafter should

The order appealed from is reversed, with directions to the court below to proceed with the trial of the action.

Shaw, J., Angellotti, J., Van Dyke, J., Henshaw, J., and Lorigan, J., concurred.