On Motion for Rehearing. On motion for rehearing plaintiff contends that he is entitled[7] to prevail on the first cause of action under the rule announced by this court because he points out that an *Page 393 abstract of title was furnished to defendants Hamrys before the last payment on the purchase price was made and hence that they had notice of the judgment when the payment was made.
It is true that the record shows the furnishing of an abstract of title to Hamrys but it fails to show what was in the abstract or as of what date it was certified or as to whether it was furnished before or after the judgment was entered. We cannot assume without proof that it contained a reference to this judgment or that it constituted actual notice of the judgment as to defendants Hamrys.
Plaintiff also contends that this court has not disposed of his contention that the lower court had no jurisdiction to make partial distribution without requiring a bond to protect creditors. Section 10323 authorizes the court or judge to dispense with the bond, if satisfied "that no injury can result to the estate."
When the petition for partial distribution was filed and[8] noticed for hearing the court had jurisdiction of the subject matter and of the parties. If the facts did not warrant the making of the order of partial distribution without bond, it was error within "jurisdiction," reviewable only by an appeal and it would not render the decree of partial distribution subject to collateral attack for want of jurisdiction. State ex rel. Enochs v. District Court, 113 Mont. 227, 123 P.2d 971, and cases therein cited.
The motion for rehearing is denied.
Rehearing denied Jan. 3, 1947.