ARK.] WATKINS V. REED-HARLAN GROCERY CO. 905 WATKINS V. REED-HARLAN GROCERY COMPANY. 4-4984
Opinion delivered March 28, 1938. 1: JUD GMENTS — COLLATERAL ArrACK.—Where . appellee's •, petition for an order to sell certain lands belonging to the estate of W. io satisfy a claim duly ' established by the probate court : on i -date named was resisted on the ground thg : the claim was not pre-, sented .to the appellant, administratrix, for allowance before the order was . made by the probate court allowing the . claim, the_ response was a collateral attack on . the judgment of the probate court and not allowable for Cirors and irregularities in allowing the claim. 2. JUDGMENTS—COLLATERAL ATTACK.—The judgment of the probate court in allowing a- claim against the estate of deceased was a' final judgment, and, no appeal, having been taken therefrom, cannot be attacked in a collateral proceeding for errors and irregularities in allowing the claim.. - Appeal from Fulton Circuit Court ; John L. Bledsoe} Judge; affirmed.
9 -0-W WATKiNS V: RED-1-1ARLAN GROCERY Co 195' Northcutt cf Northcutt, for appellantS. Oscar E. Ellis, for appellee. HumpuREys; J. This suit ori g inated in the' nrobate court of Fulton minty by. a petition of appellee tO order the sale of 'Certain real estate in said county beloriging to the estate of J. C. Watkins, deceased, to . satisfy a' claim Of $ 4 241.03 With' interest thereon, allegirig that there was no personal' prOperty Thelonging AO said estate in the hands of the administratrix to pay the f claim ; that said real estate1 was not 'the homestead of J. C. Watkins, deceased, ancFtlmt prior-to filing the petition appellees gave writtenmotice to the administratrix to apply to said court for an order to sell , enough land . to . satisfy :appellees' claim and . that said adthinistratrix failed-to apply for:the sale:thereof within sixty , days from the date of the notice as-, provided by: statute.. The petition was filed April 9; 1937. It was alleged-in : said petition that the claim was' duly: established by order of the probate court on Oc-tober in, 1935. On' May 22, 1937, the- administrâtrix peared and resisted the making of the order to sell the.- land on the ground that the claim had not been presented to her before it was allowed by the probate court, and for that reason the probate court had no jUrisdiction to order the sale of the real estate, or, to order any part thereof sold to pay the claim. On May 22, 1937, the probate court heard the application: upoii the pleadings and the evidence adduced and _ orderek that the administratrix should-sell aufficient ,of.,the described ,lands to pay„the claim of appellee -setting out the terms-of,the sa1e,.-1— - After the 'corift's - order,'P. E. Watkins, • at thb-only heir at jaw of , J. C.. Watkins, deceased, duly PoSecnted an appeal from.the prebate conrt to the circuit court of Fulton county.. -j1pon a hearing of the case in the circuit court the cause was tried without the intervention , of a jury by agreement of the parties . , resulting in a judgment in favor of apPellee for $200 with interest at the rate of 6 Per cent. -per annnm from October 21, .1935, and the cause was thereupon remanded to the probate court of Fulton county to continue with the sale of said property iflaccordance with the law as proVided by statute, where-, upon the said P. E. Watkins, the sole heir of the deceased,
ARK.] WATKINS V. REED-HARLAN , GROCERY CO. 9.Q7 prayed and was granted an appeal from the judgment of the circuit court to this court. The record reflects that letters of administration were issued July 31, 1934 to. N. M. Watkins, the widow of J. C. Watkins, deceased,,and that on, October 21, 1935, the probate court found and set . out the.debts and clain,as against the estate of J. C.;Watkins,.deceased,.among them being one in favor of Reed-Harlan G ' rocery Company for $200. After finding the list of , clainas owed by said estate an order was entered directing the adrainistratrix to sell certain real estate to . pay . the claims. The administratrix thereafter paid all the claims except the claim which had been allowed in favor of appellee and on December 16, 1935, she issued a check to .pay . appellee's4aim which was not paid by the drawee because there was not sufficient funds in the bank to pay same: ' There.ikanotation cOl-the . check ." f or J. C. Watkins', debeaSed;: . "aCcoUn et in full:" One of the witnesses, Oscar.E...E.11is,r.whojtactacted as an attorney, -testified_that the lands sold. to pay:the claims, was not sufficient to do.-so, and the administratrix testified that all the claims had- been paid by her, eiCept the claim of appellee, out of the prOceeds of the land-sold pursuant to the order of the ' probate:coUrt. The.only defense interposed by the.administratrix of the estate to thepetitionto-selEadditional landS to-satisfy appellee's claim- is that its Claim waS . neVerflresented to the administratrix for alloWance before the 'order was' entered bY the probate .. court allowing . the testified that the claim had not . been . presented to: her, for allowance before same was allowed, by the probate court on October 21, 1935. .Her atiswer to the petition in the instant case iS a,'coL lateral. attack upon the judginent of the prObate..eourt allowing *the claim and SuCh_an attack . is not allowAlp in a collateral proceeding for errors and irregularities in the alloWance thereof. No appeal 'was taken from the judg: ment of date October 21, 1935.' Mays v. Rogers, AdminiS-. trator, 37 Ark. 155. This court said in the case of Kul-beth y..Drew County _Timber Co., , 125 Ark._291, 188 S. W. 810, quoting the fourteenth syllabus, that: 'Errors and irregulanties are not o Tounds fo.r vacating ajndgment
908 [195 by way of collateral attack. The judgment must be assailed only in a direct proceeding in the nature of a review of error." Of course the judgment of date October 21, 1935, was a final judgment and; no appeal having been taken therefrom, cannot be attacked in a collateral proceeding such as the instant one is. No error appearing, the judgment is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.