Wells v. Wells

496 P.2d 718, 262 Or. 44, 1972 Ore. LEXIS 451
CourtOregon Supreme Court
DecidedApril 26, 1972
StatusPublished
Cited by9 cases

This text of 496 P.2d 718 (Wells v. Wells) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wells v. Wells, 496 P.2d 718, 262 Or. 44, 1972 Ore. LEXIS 451 (Or. 1972).

Opinions

TONGUE, J.

The sole issue in this case is whether the trial court erred in refusing to set aside an order closing an estate, discharging the administratrix and exonerating her bond. The Court of Appeals affirmed the trial court (7 Or App 243, 490 P2d 213 (1971)). We granted a petition for review.

The petition to set aside that order alleges, in substance, that Bill A. Wells, during his lifetime filed a “certain suit” and then died while it was pending appeal in this court; that the court then substituted the administratrix of his estate as the appellant in that case and later remanded the case for further action, after which the defendants filed an answer and a cross-complaint for an accounting.

The petition also alleges that by “inadvertence” of counsel, during the pending of that suit, an order was taken discharging the administratrix. The only explanation for such “inadvertence” according to the one-page affidavit of counsel filed in support of that petition, was:

“That when the order of April 21, 1970, was prepared it was my intention that the same only approve the accounting then filed by said administratrix and that she be permitted to continue to act and to complete the litigation pending in Case No. 7074. That by inadvertence the usual order of dis[47]*47charge was made in my office and entered by the Court without my personal knowledge.”

The petition goes on to allege that although it was the intent of the administratrix to continue the other lawsuit, it has since been dismissed by the trial court with prejudice; that an appeal from that dismissal is now pending in this court, and that at the time of filing the petition one year had not elapsed since the entry of the order closing the estate and discharging the administratrix. The petition “prays for an order nunc pro tunc correcting said order * * * by merely approving the account * * * and continuing said administratrix in her official position in order to complete to final conclusion the litigation” in the other case.

In appealing to the Court of Appeals from the refusal of the trial court to “correct” that previous order petitioner contended, as he had before the trial court, that he was entitled to such relief under the following terms of OES 18.160:

“Relief from judgment, decree, order or other proceeding. The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” (Emphasis added)

Petitioner also stated that “this application to amend is made under [OES] 18.160, not Section 116.233,” of the probate code, as adopted in 1969, and which provides as follows:

“Reopening estate of decedent. Upon the petition of any interested person, the court, with such notice as it may prescribe, may order the estate of [48]*48a decedent reopened if other property is discovered, if any necessary act remains unperformed or for any other proper cause appearing to the court. The court may reappoint the former personal representative, or appoint another personal representative, to administer any additional property or to perform such other acts as are considered necessary. The provisions of law as to original administration apply, in so far as applicable, to accomplish the purpose for which the estate is reopened, but a claim that already is adjudicated or barred may not be asserted in the reopened administration. [1969 c. 591 § 190]” (Emphasis added)

The Court of Appeals, in affirming the trial court, held, in referring to OES 18.160, that:

“* * * its applicability to the instant situation is doubtful, for it would seem to go beyond liberal construction to say that the order of April 21, 1970, which appellant herself affirmatively sought and obtained ex parte and from which she now seeks relief, was ‘taken against him through his mistake, inadvertence * * * or excusable neglect.’ OES 18.160. This question, however, need not be decided, for, assuming arguendo, that the statute applies, appellant’s relief is within the discretion of the trial court. Its action in refusing to set aside a decree or order will not be reviewed except for a manifest abuse of discretion. * * *” (Emphasis added)

After holding that “we cannot say here there was a manifest abuse of discretion,” the Court of Appeals went on to say that:

“We note that appellant in her brief states, ‘this application to amend is made under [OES] 18.160, not Section 116.233.’ Accordingly, we do not consider the applicability of the latter section to the facts of this case.”

Petitioner then filed a petition for rehearing in [49]*49the Court of Appeals, in which it was contended that because this court had held that the complaint in the other case stated a good cause of action and because that case was also pending a further appeal to this court, “the rights of the parties should be finally judiciously determined on the merits.” That petition for rehearing was denied.

A petition for review was then filed in this court, contending that “where, by mistake of counsel, plaintiff has not been accorded a trial nor ‘had his day in court,’ the trial court erred in the exercise of its discretion in refusing to relieve the plaintiff from the judgment in question,” citing Fretland v. Cantrall, 78 Or 439, 443, 153 P 479 (1915), and Astoria Savings Bank v. Normand et al, 125 Or 347, 355, 267 P 524 (1928). That petition for review was granted by this court.

In granting the petition for review this court instructed its clerk to write to counsel as follows:

“The Court requests that Mr. Conn file a supplemental brief stating if his position is supported by OES 116.233 and also whether the Probate Court had an inherent power apart from any statute to reopen the estate and continue Anna Wells as administratrix.”

In responding to that request, counsel filed a further brief on the question of “* * # the inherent right of the probate court to set aside an order settling and allowing a final account and to permit the Administratrix to pursue legal remedies seeking the collection of assets of an estate.” That brief cites two cases, Livesley v. Pioneer Trust Co., 170 Or 613, 135 P2d 777 (1943), and Hughes v. Aetna Casualty Co., 234 Or 426, 383 P2d 55 (1963). The only reference in [50]*50petitioner’s brief to OES 116.233 is to say that it is a “* * * codification of the right to reopen previously closed estates * * *” and was “* * * enacted undoubtedly as the result of the decision(s)” of this court in Livesley and Hughes.

In oral argument before this court counsel for petitioner contended that under either OES 18.160 or 116.233 the trial court had power to and should have set aside its previous order closing the estate and discharging the administratrix, in order that the administratrix might then be able to continue the litigation of the other case to a final conclusion. He candidly admitted, however, his motion to set aside that order was based upon OES 18.160.

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Wells v. Wells
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Bluebook (online)
496 P.2d 718, 262 Or. 44, 1972 Ore. LEXIS 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-wells-or-1972.