By the Court,
Dovtoer, J.
Tbe facts in this case, so far as any question arises on them, are tire same as in that of Sitzman v. Pacquette, 13 Wis., 291. A question, however, somewhat different from any passed upon in that case is presented by tbe counsel for tbe plaintiff in error. They say, grant that Brunson was not in fact administrator de bonis non, yet bis petition as such for leave to sell tbe land of which Pierre Pacquette died seized, tbe notice of tbe application to tbe heirs, and tbe [547]*547order of tbe probate court authorizing tbe sale to be made, are all regular on tbeir face, and show prima facie that tbe probate court had j urisdiction of the subject matter and of the parties ; and if so, its decision, however erroneous, is conclusive until reversed. This view is based upon the isolation of a portion of the record of the probate court in the matter of the estate of Pacquette. It supposes that that part which pertains to the sale of real estate is a complete record in and of itself, and that which pertains to personal property may be another complete record, and that which pertains to the appointment of an administrator is still another complete record. Our view is, that the whole record, from and including the appointment of the administrator down to and including the sale of the real estate, is but one continuous record; and it must all be considered as before the court and the parties upon the application to sell and confirm tbe sale of the real estate. It is proper to consider it as one entire record. This court has twice decided that this record showed that Brunson’s appointment as administrator ch bonis non was void, and that his sale of the real estate was void. "We adhere to the former decisions.
Judgment of the court below affirmed, with costs.
The plaintiff in error moved for a rehearing, and on that motion his counsel argued as follows: As the petition for the order of sale stated all that the law required, the court was bound to give the petition a hearing; and the power to hear and determine the case upon the allegations made, was jurisdiction. 13 Wis., 303; 10 id., 17. It is said that one of the jurisdictional facts, although alleged in the petition, did not actually exist But the allegations are one thing and the proof of them is another. How can a court know that the j urisdictional facts alleged do not exist, until it hears the case; and how can it hear a case without jurisdiction to hear it ? To say that its jurisdiction depends upon the existence of certain facts, and that it has no jurisdiction to enquire whether those facts do [548]*548exist, seems to be absurd. But it may be said that a court of limited j urisdiction has necessarily a right to proceed with a case so far as to bear proof as to the existence of the j urisdic-tional facts, but that if on the hearing the jurisdictional facts are not proven, then the jurisdiction ends. But who is to judge whether the jurisdictional facts are proven ? The judge who hears the proof must necessarily come to such a decision upon that point as seems right to him; and the question arises, If all the jurisdictional facts are alleged in a complaint, and the judge, upon a hearing, finds that the facts are true as alleged, and jet the jurisdictional facts did not really exist, and the proof, spread upon the record of the case, did not justify his finding, what effect is to be given to the judgment? How •this question should be answered when the proceedings were ex parte, and when consequently the persons affected by it had no opportunity to appeal from the decision, we need not here inquire. The question here is, what effect is to be given to such a j udgment as between parties to it, while it remains un-reversed. In other words: Can a party to a proceeding in a court of limited jurisdiction assail the judgment collaterally, upon the ground that the jurisdictional facts stated in the petition or complaint were not proven or did not exist ? It seems to us not. To say that the judgment of a court which has no jurisdiction, is a nullity, and that if the jurisdictional facts did not exist, the court had no jurisdiction's to ignore the true question, which is, whether a party to the judgment can be permitted to say that the jurisdictional facts adjudged to have existed, did not exist. We think he is estopped to say so; and if he cannot say so, that is an end of the question. This is the turning point of the controversy ; and we can find no language upon the subject more explicit than the following: “ If a tribunal is authorized to act upon a certain state of facts and also to try whether the facts exist, then if they are properly alleged before it, and the parties are legally notified and have opportunity to contest them, the finding of such a tribunal, [549]*549upon those facts would, be the finding of a competent tribunal, and ought to be conclusive until reversed in a direct proceeding.” Wanzer v. Howland, 10 Wis., 16. What we have claimed is only this: that where jurisdiction over the person is necessary and has been acquired, and the power of the court to adjudicate between the parties depends upon the existence of certain facts properly alleged, and which may, like the merits, be contested on the trial, there the judgment of the court is conclusive as to the existence of those facts, until it is reversed. We believe this proposition is too well settled to be debatable. 10 Wis., supra ; 4 Wend., 436 ; 20 Wend., 241; 1 Selden, 424. It is said however that the minutes of the probate court made previously to the filing of Brunson's petition, and the papers then on file in the Pacquette administration, showed that Brun-son had not been duly appointed administrator and thus established the non-existence of a jurisdictional fact. But a demurrer to the petition would have reached the petition only, it would not have run back through the minutes of previous proceedings in the estate and searched the files for something which might defeat the petition. The most that can be said of those minutes and files is, that, on error or appeal, they might be regarded as a part of the evidence in the case, and in that way be used to show that the judgment was erroneous. In 4 Wend., 436, the plaintiff sought to impeach an administrator’s sale collaterally, by showing from the inventory and the administration account presented to the surrogate on the application for the order of sale, that there was no necessity for a sale in order to pay the debts. That necessity was a jurisdictional fact. But the court said : “ In deciding upon the sufficiency of the assets he (the surrogate) acts judicially, and an, error in this matter does not affect his jurisdiction. It is his duty to settle that question. If he errs,, his determination may be corrected and reversed on appeal; his proceedings are not void, but voidable only.” So if the probate judge decided erroneously the question whether Brunson’s appointment was [550]*550void or not, it was still a question which he had a right to decide ; the error was made in the exercise of jurisdiction; and the judgment is binding until reversed. Having failed to answer the petition or to appeal from the judgment, the heirs cannot cast upon a purchaser at a judicial sale the perils of an issue which they were brought into court to meet, and which they alone had an opportunity to litigate.
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By the Court,
Dovtoer, J.
Tbe facts in this case, so far as any question arises on them, are tire same as in that of Sitzman v. Pacquette, 13 Wis., 291. A question, however, somewhat different from any passed upon in that case is presented by tbe counsel for tbe plaintiff in error. They say, grant that Brunson was not in fact administrator de bonis non, yet bis petition as such for leave to sell tbe land of which Pierre Pacquette died seized, tbe notice of tbe application to tbe heirs, and tbe [547]*547order of tbe probate court authorizing tbe sale to be made, are all regular on tbeir face, and show prima facie that tbe probate court had j urisdiction of the subject matter and of the parties ; and if so, its decision, however erroneous, is conclusive until reversed. This view is based upon the isolation of a portion of the record of the probate court in the matter of the estate of Pacquette. It supposes that that part which pertains to the sale of real estate is a complete record in and of itself, and that which pertains to personal property may be another complete record, and that which pertains to the appointment of an administrator is still another complete record. Our view is, that the whole record, from and including the appointment of the administrator down to and including the sale of the real estate, is but one continuous record; and it must all be considered as before the court and the parties upon the application to sell and confirm tbe sale of the real estate. It is proper to consider it as one entire record. This court has twice decided that this record showed that Brunson’s appointment as administrator ch bonis non was void, and that his sale of the real estate was void. "We adhere to the former decisions.
Judgment of the court below affirmed, with costs.
The plaintiff in error moved for a rehearing, and on that motion his counsel argued as follows: As the petition for the order of sale stated all that the law required, the court was bound to give the petition a hearing; and the power to hear and determine the case upon the allegations made, was jurisdiction. 13 Wis., 303; 10 id., 17. It is said that one of the jurisdictional facts, although alleged in the petition, did not actually exist But the allegations are one thing and the proof of them is another. How can a court know that the j urisdictional facts alleged do not exist, until it hears the case; and how can it hear a case without jurisdiction to hear it ? To say that its jurisdiction depends upon the existence of certain facts, and that it has no jurisdiction to enquire whether those facts do [548]*548exist, seems to be absurd. But it may be said that a court of limited j urisdiction has necessarily a right to proceed with a case so far as to bear proof as to the existence of the j urisdic-tional facts, but that if on the hearing the jurisdictional facts are not proven, then the jurisdiction ends. But who is to judge whether the jurisdictional facts are proven ? The judge who hears the proof must necessarily come to such a decision upon that point as seems right to him; and the question arises, If all the jurisdictional facts are alleged in a complaint, and the judge, upon a hearing, finds that the facts are true as alleged, and jet the jurisdictional facts did not really exist, and the proof, spread upon the record of the case, did not justify his finding, what effect is to be given to the judgment? How •this question should be answered when the proceedings were ex parte, and when consequently the persons affected by it had no opportunity to appeal from the decision, we need not here inquire. The question here is, what effect is to be given to such a j udgment as between parties to it, while it remains un-reversed. In other words: Can a party to a proceeding in a court of limited jurisdiction assail the judgment collaterally, upon the ground that the jurisdictional facts stated in the petition or complaint were not proven or did not exist ? It seems to us not. To say that the judgment of a court which has no jurisdiction, is a nullity, and that if the jurisdictional facts did not exist, the court had no jurisdiction's to ignore the true question, which is, whether a party to the judgment can be permitted to say that the jurisdictional facts adjudged to have existed, did not exist. We think he is estopped to say so; and if he cannot say so, that is an end of the question. This is the turning point of the controversy ; and we can find no language upon the subject more explicit than the following: “ If a tribunal is authorized to act upon a certain state of facts and also to try whether the facts exist, then if they are properly alleged before it, and the parties are legally notified and have opportunity to contest them, the finding of such a tribunal, [549]*549upon those facts would, be the finding of a competent tribunal, and ought to be conclusive until reversed in a direct proceeding.” Wanzer v. Howland, 10 Wis., 16. What we have claimed is only this: that where jurisdiction over the person is necessary and has been acquired, and the power of the court to adjudicate between the parties depends upon the existence of certain facts properly alleged, and which may, like the merits, be contested on the trial, there the judgment of the court is conclusive as to the existence of those facts, until it is reversed. We believe this proposition is too well settled to be debatable. 10 Wis., supra ; 4 Wend., 436 ; 20 Wend., 241; 1 Selden, 424. It is said however that the minutes of the probate court made previously to the filing of Brunson's petition, and the papers then on file in the Pacquette administration, showed that Brun-son had not been duly appointed administrator and thus established the non-existence of a jurisdictional fact. But a demurrer to the petition would have reached the petition only, it would not have run back through the minutes of previous proceedings in the estate and searched the files for something which might defeat the petition. The most that can be said of those minutes and files is, that, on error or appeal, they might be regarded as a part of the evidence in the case, and in that way be used to show that the judgment was erroneous. In 4 Wend., 436, the plaintiff sought to impeach an administrator’s sale collaterally, by showing from the inventory and the administration account presented to the surrogate on the application for the order of sale, that there was no necessity for a sale in order to pay the debts. That necessity was a jurisdictional fact. But the court said : “ In deciding upon the sufficiency of the assets he (the surrogate) acts judicially, and an, error in this matter does not affect his jurisdiction. It is his duty to settle that question. If he errs,, his determination may be corrected and reversed on appeal; his proceedings are not void, but voidable only.” So if the probate judge decided erroneously the question whether Brunson’s appointment was [550]*550void or not, it was still a question which he had a right to decide ; the error was made in the exercise of jurisdiction; and the judgment is binding until reversed. Having failed to answer the petition or to appeal from the judgment, the heirs cannot cast upon a purchaser at a judicial sale the perils of an issue which they were brought into court to meet, and which they alone had an opportunity to litigate. A purchaser in such case may be charged with the duty of seeing that the petition stated facts which called into exercise the jurisdiction oi the judge, and that the heirs were duly brought into court (for these things he may ascertain); but if a man cannot buy safely until he has examined all the previous minutes and papers on file to see whether the judge may not have made a mistahe of judgment as to the existence of a jurisdictional fact, prudent men will cease to bid at such sales. If the petition in such case states all the jurisdictional facts, and the heirs, though made parties, are not bound by the judgment, but may contest in a collateral action the existence of any-jurisdictional fact, to what end are they brought into court ?
The motion for a rehearing was denied, and the following opinion filed, on the 27th of June, 1865.
DOWNER, J.
A motion for rehearing having been made in this case, we are asked to reconsider the opinion delivered at the last term of this court. It is maintained that we were mistaken as to the question presented for consideration having been twice passed upon previously by the court. It is true that in the case of Sitzman v. Pacquette, 13 Wis., 241, Chief Justice Dixon took no part in the decision, and that the other judges were divided in opinion, which resulted in affirming the judgment of the court below. The trial in the circuit court was before the chief justice, then circuit judge, and the views taken by him of the record of the county court were affirmed by this court; and subsequently in the case of Showers v. Pacquette the same question was presented, and the [551]*551chief justice and Mr. Justice Paine (Justice Cole dissenting) affirmed tbe judgment of the circuit court, without giving any written opinion, but announced from the bench that the majority of the court concurred in the opinion of Justice Paine in the case of Sitzman v. Pacquette; and the majority of the court in this case concur in and adopt that opinion as the opinion of the court.
It is again urged that the question, presented is as to the jurisdiction of the probate court to make the order of sale, and that the petition of Brunson for license to sell shows on its face enough to give jurisdiction ; that it alleges that he was administrator de bonis non of the estate of Pierre Paequette, deceased, and all other facts nesessary to show jurisdiction, and that due notice was given to all interested, and that thus everything was fair on the face of the record, and the court had jurisdiction of the subject matter and of the parties, and in ordering the sale necessarily must have decided, and did decide, that Brunson was administrator de bonis non; and consequently that the judgment decreeing the sale is conclusive until it is reversed. The only allegation in the petition for leave to sell real estate, of the official character of Brunson, is the following: “ The petition of the undersigned, administrator de bonis non of the estate of Pierre Paequette, deceased.” It is at least very questionable whether, if an administrator had commenced a suit in any other court than that by which he had been appointed administrator, this could be regarded as a sufficient allegation that he was administrator, and in the probate court it may be considered as a mere reference to his appointment well known to the court, so as to give the court information of the character in which he appeared. It was not necessary that there should be any judgment of the court that he was administrator, and none was given. The court had previously appointed him administrator, and that was equivalent to a judgment of the court that he was administrator. In all sub sequent proceedings in the settlement and administrado of [552]*552the estate, the probate court takes judicial notice of the appointment. If the probate court' decided., on the application of Brunson for leave to sell real estate, that he was administrator, then on each petition or request by the administrator for leave to sell real estate or to authorize him to compromise a claim, or to appoint commissioners to divide real estate, or to settle his account, or for authority to do any of the many acts which in the course of administration he may be required to obtain special authority for doing, the probate court also decides that the administrator is administrator; and it would make the same decision in the course of the administration of the same estate over and over again. We are of opinion that the probate court is not required by law to make, and does not ordinarily make, any decision as to the official character of an administrator after his appointment, unless an issue on that subject is made. As we said in our former opinion, we regard the whole record of the probate court respecting the settlement of any estate as one continuous record, and before the court on each application ; and the petition for license to sell real estate is to be considered the same as though the appointment of Brunson by the probate court and all the proceedings relating to it had been inserted in and made part of the petition.
The motion for a rehearing is overruled, with costs.