*379Former opinion reversed, decree below reversed and suit dismissed January 30, 1917.
On Rehearing.
(163 Pac. 585.)
In Banc. Statement by
Mr. Justice Moore.This is a collateral attack upon the validity of a probate order licensing the sale of real property of a decedent’s estate to pay the debts thereof. The material facts are that Charles W. Fletcher, an inhabitant of Coos Connty, Oregon, died intestate therein January 27, 1897, seised and possessed of real and personal property in that county. He left surviving Maggie E. Fletcher, as his widow, and Minnie E. Stadelman, a daughter, and Henry H. Fletcher, a son by a former wife from whom as it appears from a certified copy of a decree of a court of another state, which was received in evidence, he was divorced. The County Court of Coos County, Oregon, upon Maggie E. Fletcher’s verified petition, which set forth the facts necessary to give the court jurisdiction, detailed the property of the estate and estimated the worth thereof, stated the deceased left no will, and gave the names and ages of his heirs and her own residence, but alleged that the residence of the daughter and son named was unknown, appointed as administrator John F. Hall, a citizen and resident of that county, who duly qualified for the trust and entered upon a discharge of his duties. He published notice to creditors and caused to be made and filed an inventory and appraisement of all the property of the estate. In administering thereon the proceeds of the sale of personal property thereof were exhausted, leaving charges, expenses, and claims not all satisfied, whereupon the administrator *380applied to the County Court for an order of sale of the real property, or so much thereof as might be necessary to discharge such obligations. His petition therefor stated that all the personal property had been disposed of by order of that court, minutely detailed the charges, expenses, and claims remaining unsatisfied, as far as could be ascertained, amounting to $512.98, gave a description of the real property and the value of the different portions or lots and the conditions thereof, alleged that there were no liens thereon except the taxes, gave the names and ages of the heirs and the residence of Maggie E. Fletcher, but alleged that the residence of the daughter and son named was unknown, stating what effort had been made to ascertain where they resided, and averred that it was the belief of the administrator that Maggie E. Fletcher, then Mrs. Young, was the only surviving heir.
The County Court on June 6, 1902, made findings of fact substantially as set forth in the petition and ordered that a citation be issued to the heirs and all other persons interested in the estate to appear before that court at the courthouse on July 14, 1902, which was at a day of a regular term of that court, and show cause, if any they had, why an order should not be granted the administrator to sell so much of the real property of the estate, particularly described in the petition, as might be necessary to pay the debts and expenses mentioned; and that such citation be served upon the decedent’s daughter and son, whose residence was found to be unknown, by publication for four weeks in the “Coos Bay News,” a weekly newspaper published in that county, requiring such heirs and all other persons interested in the estate to appear at the time and place so specified and show cause, if any existed, why the order prayed for should not be *381granted. The sheriff’s return shows that the citation was personally served upon Maggie E. Fletcher. The affidavit of the printer of the “Coos Bay News” states that the citation, a copy of which is attached to the sworn declaration, was published in the regular issues of that newspaper once a week for five successive issues; the first appearing June 17, 1902,. and the last on July 15th of that year. Predicated on such proof the County Court on July 17, 1902, found that it was necessary to sell, with other land, the following described real property: The southwest quarter of the northeast quarter, the north half of the northeast quarter, and the northwest quarter of the southeast quarter of section 21, township 26 south, range 11 west of the Willamette Meridian, to pay the debts of the estate and the expenses of the administration. The court further found that the citation had been duly served; that the time for filing objections to the petition for the sale of land had expired, and that no person had appeared or filed objections to the granting of the license prayed for, whereupon it was ordered that the administrator be and he was authorized to sell the real property particularly described or so much thereof as might be necessary to pay the debts and expenses of the estate; that such land be disposed of at private sale to the highest bidder, one half of the purchase price to be paid in cash on the day of sale, and the remainder to be evidenced by a promissory note payable in a year with legal interest and secured by a mortgage of the premises. Founded on such license the administrator duly advertised the sale of such land as provided by law and received only one bid therefor, that of August Nelson of $640, which sum was also to be in payment of Maggie E. Fletcher’s *382dower right. The offer was accepted, and upon the administrator’s report the County Court on February 3, 1903, duly confirmed the sale, whereupon the administrator’s deed and a conveyance of the dower right were executed to the purchaser.
Thereafter this suit- was instituted by Mrs. Stadelman, her brother, and J. W. Motley, to whom an undivided one half of the land had been conveyed, against W. H. Miner and Charles Worden, who had succeeded to all the interest of August Nelson in the real property hereinbefore described, to quiet the title thereto. The cause being at issue was tried, and from the evidence received findings of fact and of law were made; and based thereon a decree was given for the relief prayed for in the complaint, but the defendants were awarded $640, the purchase price of the land, and interest thereon from January 21, 1903, and the further sum of $302.54, which they had paid as taxes imposed on the premises. The court found that Maggie E. Young, as the widow of deceased, had an unassigned dower right in the land, which annuity at her age was equal to four per cent of the present value of the premises, and further decreed that the real property be sold and from the proceeds arising therefrom that there be paid the sum so awarded, and if any money then remained it should be paid over to the plaintiffs. From this decree the plaintiffs and the defendants separately appeal. Former Opinion Reversed.
Decree Below Reversed.
Suit Dismissed. '
Mr. Guy G. H. Corliss, for the appellants.
Mr. Marry G. Moy, for the respondents.
*383Mr. Justice Mooredelivered the opinion of the court.
At a former hearing of this cause it was practically conceded that the administrator’s deed was void on the ground that the order licensing the sale of the land was prematurely granted, but it was contended that the curative acts of 1907 (Section 7156, L. O. L.) and 1913 (Glen. Laws Or. 1913, c. 363, Section 3) remedied the infirmity. It was ruled, however, that these remedial statutes could not infuse life into any proceedings that never had vitality: Stadelman v. Miner, ante, p. 348 (155 Pac. 708). A rehearing herein having been granted, it was maintained thereat by defendants’ counsel that, though the license to sell the land was granted too soon, the citation had been duly served upon the heirs by publication for the required time, and that such order of sale was not void, and, therefore, not vulnerable to collateral attack. The statute regulating the procedure in cases like that under consideration reads:
“Upon the filing of the petition a citation shall issue to the devisees and heirs therein mentioned, and to all others unknown, if any such there be, to appear at a term of court therein mentioned, not less than ten days after the service of such citation, to show cause, if any exist, why an order of sale should not be made as in the petition prayed for.” Section 1254, L. O. L.
“Upon an heir or devisee unknown or nonresident, it may be served by publication in a newspaper published in the county chosen by the administrator or executor not less than four weeks.” Section 1255, L. O. L.
14. The four weeks and ten days thus limited means 38 days to be computed by excluding the first day of publication of the citation and including the day upon *384which the order of sale of the land is made: O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004; Horn v. United States Mining Co., 47 Or. 124 (81 Pac. 1009). Omitting June 17, 1902, the day of the first publication, it will be seen that the time specified expired July 24th of that year. The license having been granted July 17, 1902, the order was made a week too soon. The service of the citation, though constructively made, was as completely performed July 14,1902, the expiration of the four weeks specified in the order, as if the service had been personally made by a proper officer upon Mrs. Stadelman and her brother: Section 1254, L. O. L. Prom that time the County Court was deemed to have acquired jurisdiction and to have had control of all the subsequent proceedings: Section 63, L. O. L.
The service of the citation having been completed does the order of sale which was thereafter prematurely made render the subsequent proceedings void or voidable? If the latter only, though the license which was granted might have been set aside on a direct attack, it was unassailable in any other manner. Thus in Woodward v. Baker, 10 Or. 491, it was decided that when a defendant had been personally served with a summons and a copy of the complaint, a judgment thereafter prematurely rendered against him, as for want of an answer, was voidable only and not subservient to collateral attack. In Altman v. School District, 35 Or. 85, 88 (56 Pac. 291, 292), Mr. Justice Bean in speaking of the defendant quasi corporation says:
‘ ‘ The fact that it was not given all the time allowed by law after the service of the summons in which to plead will not vitiate the judgment or make it subject to collateral attack.”
*385In Murray v. Purdy, 66 Mo. 606, it was ruled that an approval of an administrator’s sale when made at a term prior to that prescribed by law was not void but voidable only, criticising earlier decisions of that court to the contrary. In Sims v. Gray, 66 Mo. 613, it was held that an administrator’s deed was not void by reason of the fact that the sale was reported to and approved by the court at the same term at which it was made instead of at a subsequent term as required by law. In deciding that case Mr. Justice Hough remarks:
“When the petition for the sale of the real estate was filed and publication was made, notifying all persons interested in the estate that, on a day named, an order for the sale thereof would be made, unless cause to the contrary should be shown, the heirs were in court; and no other or further notice was required, by law, to be given to them of any subsequent proceedings in the case. The court was a court of record, having complete jurisdiction of the subject-matter of the proceeding, and while such jurisdiction must be exercised according to law, yet if the court exceeds its powers under the law, and disregards the statutory requirements established for its guidance, its acts may be irregular or erroneous, but they will not be void. Johnson v. Beazley, 65 Mo. 250 [27 Am. Rep. 276]. A judgment rendered after notice, but sooner than it should have been rendered according to the rules of law, or the practice of the court, is simply an irregular judgment and may be set aside on motion, in any court of record, at a subsequent term.”
To the same effect see also Wilkerson v. Allen, 67 Mo. 502; Snyder v. Markel, 8 Watts (Pa.), 416. In Woodward v. Baker, 10 Or. 491, it will be remembered the premature judgment there rendered was based upon the personal service of a summons and a complaint. In Moore Realty Co. v. Carr, 61 Or. 34, 39 *386(120 Pac. 742, 744), it was determined, however, that a defect in the service of a summons by publication did not render the judgment founded thereon void. In deciding that case Mr. Chief Justice Eakin, speaking for the court, says:
“The rule seems to be that, if there is actually some notice to the defendant, it is sufficient on a collateral attack, and the irregularity or defect in the service or lack of compliance with the statute does not render the judgment void, but merely voidable.”
The rule thus stated is abundantly sustained by authority : Clay v. Bilby, 1 Ann. Cas. 917. In a note to that case at page 923 it is said:
“The same principles are applicable in cases where the service is by publication. If there is actually some notice, an irregularity in the publication does not necessarily render the judgment void and cannot be taken advantage of collaterally” — citing many cases.
15, 16. When a defendant in a civil action is personally served with a summons and a complaint whereby he is notified to appear and answer at a time and place specified, if a judgment be prematurely rendered against him, he can have the irregularity corrected by appearing on the return day and interposing a motion for that purpose. If he do not thus move in the matter and offer no valid excuse for his delay, it should be taken for granted that he had no sufficient defense and for that reason is justly bound by the final determination which though voidable cannot be collaterally assailed. So too when complete service by publication is made of process, and before the return day thus specified the relief sought is granted, the party affected thereby may at any time within a year from the entry of the judgment, when rendered *387upon such, service, be allowed to defend on sucb terms as may be just: Section 59, L. O. L. If he do not within tbe time thus limited move to set aside sucb irregular judgment, it should be treated as voidable only and not vulnerable to collateral attack. In the case of service of process by publication if tbe party to be affected thereby never receives tbe notice designed to be imparted, be cannot be expected to appear at tbe place designated on tbe specified return day; but as tbe statute allows him a year after tbe entry of the judgment in which to apply for leave to defend tbe suit or action, and grants to tbe party who is personally served only tbe day appointed, sucb difference in time should be treated as ample compensation for tbe dissimilarity in tbe mode of service. With an exercise by counsel for a moving party of all tbe care that can reasonably be bestowed, it frequently happens that tbe parties intended to be affected by tbe service of process by publication never obtain any knowledge thereof until more than a year after tbe judgment or decree has been rendered against them, and then too late to apply for leave to set tbe final determination aside and to interpose a defense. Notwithstanding sucb possible results tbe court secures jurisdiction of tbe person by tbe publication of tbe process for tbe prescribed period, and because tbe judgment may be rendered against tbe party after sucb service is completed but prior to tbe return day, which extension is allowed by law and intended to be sufficient to enable tbe party so served to make tbe journey by ordinary means of travel from bis residence to tbe place of trial at tbe appointed time, tbe final determination so rendered in tbe case supposed ought not to be regarded as void, but voidable only. In sucb case if tbe party intended to be served by publication of tbe pro*388cess had no knowledge thereof, he conld not have appeared at the time and place designated; and this being so the premature rendition of the judgment could not have seriously prejudiced him.
17. It is not charged that the administrator was guilty of fraud in the publication of the citation, or that he did not exhaust every reasonable source of information to ascertain the residence of the decedent’s daughter and son so as to mail to them copies of the citation. Under such circumstances, though the order of the County Court licensing the sale of the land to pay the debts of the estate was prematurely granted, such final determination is not void, but voidable only ; and this being so its validity cannot be collaterally challenged.
The deduction thus made render's it unnecessary to consider any other question involved. The decree is, therefore, in all respects reversed and the suit dismissed, a conclusion which would have been reached at the former trial if the argument last adduced had then been made.
Former Opinion and Decree Below Reversed.
Suit Dismissed. Approved on Second Rehearing.