Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-04-23
Supreme Court

II the Supreme Court, State of North
Dakota, October Term, 1912.
Nellie Shane, Aggie Shane, George
Shane, Maggie Shane, Lucy Shane,
Lena Shane, Joseph Daoust and
Florence Daoust, Plaintiffs and APP
%pellants, VS.. Fl. Peoples, Defendant
and Respondent.
I. The running Of the statute OF
limitations cannot be raised by de-
murrer, but must be pleaded in the
answer. This is the case in North
Dakota under Section STA, r. c. 1908,
even though the fact is apparent upon
the fact Of the complaint.
2. TO subject the Judgment Of a
county court to collateral attack the
absence Of jurisdiction must appear
on the face of the Judgment, and
though the record may be irregular
and defective, the Judgment, if valid
upon its face, is not as a rule sub
ject to collateral attack. 1t is not
sufficient to overcome the presump-
ton in favor Of the jurisdiction OF
the court for the person who seeks TO
avoid its consequences to merely al
lege that he had no legal notice OF
the tendency of the action in which
it was rendered. Such person must
allege what, If anything, was shown
by the record in relation to the issue
and service OF process therein.
3. A court, on collateral attack,
,,;Il hn prncprnn1 IN have Hnna ltS
duty, and this includes the presump.
ton that all parties affected by said
judgment and decree ere properly
before it. .o,
4. An attempt to have declared
void a sale made by the administrat-
or of an estate, and the decree of the
county court authorizing and ratify-
ing the same, even though made in
the form of an action to quiet title,
is a collateral attack upon said sale
and said decree.
5. The proceedings leading up to
the sale of real estate by the admin
istrator of the estate of an intestate,
under the authorization of the county
court, is a proceeding in rem.
6. Where a petition is filed in
county court by one of the heirs-at'
law, which states that he is the sole
and only heir-at-law, 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
party to, or cited to appear in, such
proceedings, there is a legal presump'
ton that the county court passed up
on the question of heirship.
= Z. In a collateral attack upon a
, judgment Of a county court and sale
Hereunder, it is not sufficient to al
lege that the party seeking to avoid
ia 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, and if the peti'
ton is, on its face regular and a jud2
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 a 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.
(Syllabus by the Court.)
Appeal fro mthe District Court OF
Wells County, Burke, j..
Action in equity to quiet title to
real property and have declared void
an administrators sale thereof, alleg'
ed to have been fraudulently procur'
ed. From an order sustaining a de-
murrer to the complaint and directing
the entry Of judgment for defendant,
plaintiffs appeal.
Affirmed. Opinion Of The Court by
Bruce, ]. (Burke, j., being disquali'
fled, did not participate.)
Edward P. Kelly and T. F. McCue,
Darlington, N. D., Attorneys for Plain
tiffs and Appellants.
Maddux & Rinker, New Rockford,
N. D., Attorneys for Defendant and
ReSnOndent.