The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-04-23
DECISION OF The
SUPREME COURT

In the Supreme Court, state of
North Dakota, October term, 1912.
Nellie shane, Aggie Shame, George
Shane, Maggie Shane, Lucy Shane,
Lena Shane, Joseph Dapust and Flor
ence Daoust plaintiffs and appellants,
va n. Peoples, defendant and respond
l. The running of the statute OF
limitations can not be raised by de-
murrer, but must be PLEADED N tne
answer. This is the case In North
Dakota under section STA, X. Z 1870
even though the fact Is apparent upon
the fact of the complaint.
3 To subject the judgment of a
county court to collateral attack the
absence of jurisdiction must appear on
the face of the Judgment, n thoush
the record may be Irregular and de-
fectiye. the judgment, If valid upon us
face, is not as a rule suoJect 10 col
lateral attack. 1t Is not sufnclehl 10
overcome the presumption IN laVor OF
the Jurisdiction of the court for the
person who seeks to avoid Its conse-
auences to merely aiiege that he. had
no legal notice of the tendency OF the
action in which 1t was rendered. Such
person must allege what, II anything,
was shown by the record in relation TO
the issue and service of process there-
in. III,
3 A court, on collateral attack will
he presumed to have done it's duty,
and this includes the presumption that
all parties affected by said Judgment
and decree were properly before 1t.
4. An attempt to have declared Neic
a sale made by the administrator or
an estate, and the decree of the coun-
ty court authorizing and ratitylng the
same, even though made In the form
a. x,,aat tft1n de- q nnttaf-
eral attack upon said sale and SAID
decree.
S. The proceedings leading up to
the sale OF real estate by the admin
istrator of the estate Of an interstate,
under the authorization Of the county
court, is a proceeding In rem:
6. Where a petition is filed in a
county court by one Of the. heirs-at-
law, which states that he is h sole
and only h~eir-at-Iaw, the court. in a
collateral attack upon such proceeding
by one who claims to have been an
heir and not to have been made a par
ty to, or cited to appear in, such pro-
ceedings. there Is a legal presumption
that the county court passed upon the
question of heirship.
7. In a collateral attack upon a
Judgment of a county court and sale
hereunder, 1t is not sufficient to al
lege that the party seeking to avoid 1t
had not been served with notice or
made a party thereto. The allegation
should have been that there was not in
fact such notice and the record of the
judgment did not show, such fact.
s. The jurisdiction OF a county
court to administer an estate is con-
ferred by the petition, n If the petit
ton is, on it's face, regular and a judg-
ment is entered or a decree rendered
in conformity Herewith, jurisdiction
will be presumed on a collateral at
tack.
8. Even where fraud is alleged in
the presentment of such q petition, a
sale hereunder will not be set aside
without an allegation and proof that
the purchaser at such sale was a par
ty TO such fraud.
(SyIIabus by the court.)
Appeal from the district court of
Wells county, Burke, j.
Action in equity to quiet title to real
property and have declared void an
administrators sale thereof, alleged to
have been fraudulently procured. From
an order sustaining a demurrer to the
complaint and directing the entry of
judgment for defendant, plaintiffs APP
peal.
Affirmed. Opinion of the court by
Bruce, J. Burke, j., being disquali-
fed, did not participated
Edward p. Kelly and L. f. McCue,
Darlington, N. D., attorneys for
| plaintiffs and appellants; Maddux &
| Rinker,s New Rockford, N. D., attor-
neys for defendant and respondent.