I concur in the results reached by the majority opinion in this case but prefer to base my decision upon the proposition that the question here involved was res judicata at the time it was presented to the trial court in 1947.
The allegations in the petition clearly indicate this to be true.
There is no allegation in the pleading that William P. Roseman, executor of the above estate, was ever a bona fide resident of Arizona or that he duly qualified as such executor and thereafter removed from the state in violation of his trust as such executor so as to bring this cause of action within the provisions of section 38-705, A.C.A. 1939.
There is no question but that Letters Testamentary of a duly appointed and qualified executor may be revoked because of his removal from this state in violation of his trust as such executor. It is my view, however, that before such letters may be revoked that the law as set forth in section 38-705, supra, contemplates said executor must have been a bona fide resident of the state at the time of his appointment, qualified to act, and that he actually qualified as such executor and thereafter *Page 202 removed from the state. Contrary to such a situation, the allegations of the petition are that Roseman was not at the time of his appointment nor at any time since, a bona fide resident of Arizona; that his appointment as executor was procured by false testimony and that after his appointment, the allegations are merely that "he assumed to act as executor" and that at all of said times he was a bona fide resident of the State of Wisconsin.
At the time of Roseman's appointment as executor in April, 1944, the court was required to find as a condition precedent to his appointment that he was a bona fide resident of this state. Granting that the court's finding and order of appointment was based exclusively upon false testimony such fact does not have the effect of rendering said order and judgment void so as to subject it to collateral attack in this proceeding. Said judgment speaks with absolute verity on each material fact necessary to its rendition including the bona fides of Roseman's residence in Arizona at that time. If this were not true no judgment could be enforced because of a lack of finality.
It is my view therefore that the pleadings clearly indicate that this is a collateral attack upon the order and judgment of the trial court entered in this cause by Judge Truman in April, 1944, that said order was a valid order although based on false testimony and may not be collaterally attacked in this proceeding and that said cause should be remanded to the trial court with directions to dismiss the petition.