LEWIS v. CHAPMAN

LEWIS v. CHAPMAN
1934 OK 746
39 P.2d 102
170 Okla. 116
Case Number: 21824
Decided: 12/18/1934
Supreme Court of Oklahoma

LEWIS
v.
CHAPMAN et al.

Syllabus

¶0 1. Guardian and Ward--Sale Proceedings--Nonjurisdictional Irregularities Cured by Order of Confirmation as Against Collateral Attack.
After a county court obtains jurisdiction of a guardianship sale proceeding, all nonjurisdictional irregularities and defects between the acquirement of jurisdiction and the order of confirmation are cured by the order of confirmation to the extent that the order of confirmation may not be collaterally attacked on account of such irregularities.
2. Same--Failure to Publish Notice of Guardian's Sale for Full 15 Days Held Nonjurisdictional Irregularity.
Failure to publish notice of a guardian's sale of real estate for the full 15 days provided by the statute is a nonjurisdictional irregularity which is cured by the order of confirmation to the extent that the order of confirmation may not be collaterally attacked on account thereof.

Appeal from District Court, Creek County; Fred A. Speakman, Judge.

Action by the legal guardian of Tobey Lewis, a minor, against James A. Chapman and others. The minor became of age prior to the trial, and the cause proceeded in his name. From an adverse judgment, Tobey Lewis appeals. After the appeal, Tobey Lewis died, and the action was revived in the name of his heirs. Affirmed.

Brunson, Kemp & Kemp, for plaintiff in error.
J. C. Denton, R. H. Wills, J. H. Crocker, I. L. Lockewitz, J. P. Greve, W. F. Francis, B. B. Blakeney, Hubert Ambrister, and John Rogers, for defendants in error.

ANDREWS, J.

¶1 This is an appeal from a judgment of the district court of Creek county denying the motion of the plaintiff for judgment on the pleadings and sustaining the several motions of the defendants for judgment on the pleadings. The action was instituted by the legal guardian of Tobey Lewis, a minor. The minor became of age prior to the trial and the cause proceeded in his name. After the appeal he died, and the action was revived in the name of his heirs.

¶2 In the language of the plaintiff in error:

"The case here involves the construction of a provision of the probate statute of this state. The point of law is: That the notice of sale in this guardianship sale was not published for the required 15 days before the date of the sale." (St. 1931, sec. 1288.)

¶3 The plaintiff in error contends that the giving of the full 15 days' notice of sale of real estate by a guardian is mandatory and jurisdictional, and that where such a notice is not given, the sale is void and the order confirming the same may be attacked collaterally.

¶4 This court has repeatedly held to the contrary. See Harrison et al. v. Orwig, 149 Okla. 54, 299 P. 143, and the cases therein cited.

¶5 The judgment of the trial court is affirmed.