ON PETITION FOR A REHEARING. Appellees, in their petition for rehearing, contend that our opinion holding that when the *Page 686 court having jurisdiction of actions under § 6-1424, Burns' 1933, determines that through illegality, fraud or mistake a claim has been dismissed the judgment of such court ordering the estate reopened reinstates the claim, contravenes the ruling of the Supreme Court in the case of State ex rel. Johnson v. Cody,Judge (1937), 212 Ind. 247, 8 N.E.2d 971. We are unable to see where the question decided in that case has any application to the question presented in this appeal. The Supreme Court held in that case that upon proper request it was the duty of the trial court to grant a change of judge on the pending claim of an attorney for services rendered to a guardianship.
Appellees further contend that our mandate requires the Lake Superior Court to open the judgment of the Jasper Circuit Court on the claim involved in this action. The purpose of the 10. appellant's action in this case is to obtain a trial of its claim against decedent's estate. Obviously there can be no trial of the claim if the estate is closed. After the claim had been venued to the Jasper Circuit Court, as pointed out in the original opinion, appellee Blume sought and received permission of that court to question its jurisdiction over the trial of the claim, and did so by filing a certified copy of the order of the Lake Superior Court approving the second final report and discharging the administratrix of said estate. Thereupon, the Jasper Circuit Court properly held that it had no jurisdiction to try the claim against the estate. The Jasper Circuit Court found that the estate had been closed while the appellant's claim was pending as a civil cause in the Lake Superior Court. It had no authority to set aside the final settlement approved by the Lake Superior Court. Therefore, the only manner in which appellant could protect its rights was to have *Page 687 the final settlement set aside pursuant to the provisions of § 6-1424, supra.
The law seeks to avoid a multiplicity of actions over the same subject-matter and between the same parties. As heretofore pointed out, the only purpose of this action is to give the appellant its right to a trial of its claim on the merits. The trial court should have set aside the final settlement, which would have vested the Jasper Circuit Court with jurisdiction to try the claim on its merits. This would not have been an overruling of the judgment of the Jasper Circuit Court, but merely the correction of its own illegal action which prevented the Jasper Circuit Court from determining the claim on its merits.
Upon a reconsideration of our mandate we have determined to modify it as follows: The judgment of the Lake Superior Court, Room No. 1, is reversed and said court is ordered and directed to set aside the final settlement of decedent's estate. The clerk of this court is also directed to certify a copy of this opinion to the Jasper Circuit Court, which shall be its authority for reinstating this claim insofar as it affects the appellee Ola Emmerling Blume, administratrix with the will annexed of the estate of Nicholas Emmerling, deceased.
Appellees further complain of our statement in the original opinion that "in such an action the trial court was without authority to consider appellant's claim on its merits." 11. This statement should be amplified. What was intended was that in actions to set aside a final settlement because of illegality, fraud or mistake in the dismissal of a claim, the trial court has no authority to examine the merits of the claim except in so far as they show that the party seeking to set aside such final settlement has an interest in *Page 688 the estate. Nord v. Marty (1877), 56 Ind. 531; Haas v.Schrum (1920), 72 Ind. App. 381, 124 N.E. 761.
The facts in the case of Manor v. Manor et al. (1944), 222 Ind. ___, 53 N.E.2d 343, and those in the instant case are clearly distinguishable. In that case the appellant, to prove his interest in the estate, had to introduce in evidence the final report and this report showed that even though there was an illegality the appellant was not injured thereby, whereas in the instant case a note signed by the decedent with another, payable to the appellant, is in evidence. This is a prima facie showing of an interest. The question of whether or not the note was altered after delivery, or any other defenses, are questions that could only be properly determined on a trial of the claim on its merits.
Upon a thorough reconsideration of the questions involved in this case, we find no reason to change our original opinion except as herein set out.
The petition for rehearing is denied.
NOTE. — Reported in 54 N.E.2d 286.