Mansfield v. Cole

Citations

• 16 Ohio N.P. (n.s.) 209

Syllabus

<p>Proceeding to Sell Real Estate to Pay Debts—Erroneous Entry Vacating Previous Decree—Becomes Binding Through Failure to Appeal— Terms of Probate Court—Section 11643.</p> <p>The administrator of an estate filed his petition in probate court asking leave to sell real estate to pay debts. C filed an answer and cross-petition setting up claim of a lien upon the premises. July 2S, 1913, after hearing had, the court found in favor of C, and decree was entered withoüt contest. October 6, property ordered-sold at public sale. October 22, by motion with proper notice, A asked leave to be made party defendant; motion granted. November 1, A filed answer and cross-petition setting up a lien by virtue of judgment obtained during lifetime of decedent, upon which levy made upon real estate described in petition. No appeal or error' proceeding on order allowing A to become party defendant. Cause set for hearing de novo, and decree entered finding A had a first, and valid lien, and that C had no lien; order of sale issued. No;. appeal taken from this order, and no error prosecuted. Property sold at public sale in February, and bought in by A lor less than’ amount of his claim. February 16; the administrator filed motion to confirm sale, also to vacate order of December 29th, and grant' rehearing upon all other matters heard at that time. Motion to confirm- sale granted by the court, but overruled as to all the rest. To this ruling exceptions taken by administrator and defendants, and appeal taken to common pleas court. ST eld:</p> <p>1. The action of the probate court in practically vacating the entry of July 28th, by its decision of December 29th, was erroneous. - The' court was not authorized, under the statutes of this state, sua sponte or otherwise, to make' the entry or render the judgment and decree of December 29th. , ...</p> <p>2. As the court had jurisdiction of the subject-matter, the decree of December 29th was not void, but merely voidable, and an appeal would lie fro