Opinion on First Rehearing Approved.
Second Petition for Rehearing.
(163 Pac. 983.)
On second petition for rehearing, the opinion on first rehearing, reversing former opinion and the decree of the court below approved.
Mr. Harry G. Hoy, for the petition.
Mr. Guy G. H. Corliss, contra.
*389In Banc.
Mr. Justice Mooredelivered the opinion
of the court.
18. It is contended in a petition for rehearing that in reversing the decree herein errors were committed: (1) In holding this suit to be a collateral attack; (2) in concluding a County Court while transacting probate business is a tribunal of general and superior jurisdiction; and (3) in determining the citation issued by that court was valid. This suit was brought to quiet the title to real property, which right of ownership and possession was alleged to have been disturbed by the execution of an administrator’s deed. It is argued by plaintiff’s counsel that though bills of review have been abolished in Oregon (Section 390, L. O. L.), the form only of the procedure has been changed, while the relief anciently granted by a suit to review, correct, or reverse a decree remains; and this being so this snit is a direct attack to impeach and set aside an order of the County Court' whereby it attempted illegally to deprive, the plaintiffs of their land. That a suit in equity may be maintained in this state to set aside the final judicial determination reached in another cause is settled by repeated adjudications: Crews v. Richards, 14 Or. 442 (13 Pac. 67); Friese v. Hummel, 26 Or. 145 (37 Pac. 458, 46 Am. St. Rep. 610); Campbell v. Snyder, 27 Or. 249 (41 Pac. 659); Nessley v. Ladd, 30 Or. 564 (48 Pac. 420); Hilts v. Ladd, 35 Or. 237 (58 Pac. 32); McLeod v. Lloyd, 45 Or. 67 (75 Pac. 702); Smith v. Nelson, 46 Or. 1 (78 Pac. 740); Livesley v. Johnson, 48 Or. 40 (84 Pac. 1044). Such suit, however, is not necessarily a direct attack, though it was so held in Heatherly v. Hadley, 4 Or. 1.
*390In Morrill v. Morrill, 20 Or. 96, 101 (25 Pac. 362, 23 Am. St. Rep. 95, 11 L. R. A. 155), in a suit to set aside a decree of partition it was said:
“This is undoubtedly a collateral attack. It is an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling, correcting, or modifying the decree.”
In referring to the language so quoted a noted author remarks:
‘‘ This definition assumes that a proceeding to annul or enjoin is always direct. It is direct only when pursued in the time and manner provided by law against one who is not a bona fide purchaser”: Van Fleet, Col. At., § 3.
Though the doctrine announced in Heatherly v. Hadley, supra, has not been overruled, it has never been followed. In a note to the case of Morrill v. Morrill, supra (23 Am. St. Rep. 95, 103), it is said:
“All irregularities in the exercise of a court of general jurisdiction are cured by final judgment, and it cannot be collaterally attacked. ’ ’
In another note to that case (11 L. R. A. 155) it is ,observed:
“Judgments cannot be collaterally assailed for mere errors or irregularities. They can be assailed only when void, or when rendered without jurisdiction. ’ ’
Adopting the views thus expressed it is settled in this state the suit at bar is a collateral attack upon an order of a County Court directing a sale of land belonging to the estate of a decedent to pay the debts thereof: Finley v. Houser, 22 Or. 562 (30 Pac. 494); Belle v. Brown, 37 Or. 588 (61 Pac. 1024); Saylor v. Banking Co., 38 Or. 204 (62 Pac. 652); Meinert v. Harder, 39 Or. 609 (65 Pac. 1056); Smith v. Whiting, 55 Or. 393 (106 Pac. 791); Mansfield v. Hill, 56 Or. 400 *391(107 Pac. 471, 108 Pac. 1007); Harpold v. Arant, 64 Or. 376 (130 Pac. 737; Purdy v. Winter’s Estate, 79 Or. 614 (156 Pac. 285) ; Johnstone v. Chapman Timber Co., 79 Or. 674 (156 Pac. 286).
It is insisted by plaintiffs’ counsel that Section 9 of Article VII of the Constitution of Oregon, expressly declaring County Courts to be Inferior tribunals and subject to the appellate jurisdiction and control of the Circuit Courts, governs the determination of this cause. In support of the assertion thus made attention is called to the case of Garnsey v. County Court, 33 Or. 201 (54 Pac. 539, 1089), and Farrow v. Nevin, 44 Or. 496 (75 Pac. 711), which were writs of review, or certiorari, to annul allowances made by County Courts of claims against estates of decedents. In the first case the writ was treated as a collateral attack, while in the second it was considered to be direct. The attack in each instance, though assailing an order of the County Court made in the transaction of probate business, was certainly direct because the writs of review, which in such cases are concurrent with the right of appeal were sued out in the time and manner limited by the statute to correct judicial errors apparent on the face of the record: Section 605, L. O. L.; Van Fleet, Col. At., Section 3; Malone v. Cornelius, 34 Or. 192 (55 Pac. 536); Title Abstract Co. v. Nasburg, 58 Or. 190 (113 Pac. 2). In Garnsey v. County Court, supra, it was held that a County Court, sitting for the transaction of probate business, was an inferior tribunal, citing as sustaining that conclusion the case of Kirkwood v. Washington County, 32 Or. 568, 571 (52 Pac. 568), which was a writ of review challenging an order relating to the collection of taxes, a matter pertaining wholly to county business. If an inferior court as there defined is one from which an *392appeal will lie, it necessarily follows that Circuit Courts in Oregon are judicial tribunals of that class, for their judgments and decrees are reviewable on appeal; but such courts are conceded to be general and superior, and hence the definition so given is inapplicable. The conclusion reached in Garnsey v. County Court, supra, and in Farrow v. Nevin, supra, so far as they in effect relate to collateral attacks, are diametrically opposite, thus demonstrating that both cannot be correct expressions of the law. It may well be doubted if either decision is proper on the ground that a writ of review will not lie from the action of a County Court in probate matters, for to admit that a precept of that kind is available in such cases is to concede that the County Court while transacting business pertaining to the settlement of a decedent’s estate is an inferior tribunal, a conclusion which is at variance with every other decision rendered by this court on that subject.
In the transaction of county business the county judge usually sits with the county commissioners, which officers when thus assembled at the time and place appointed by law, though exercising administrative and executive duties concerning the financial affairs of the county, its police powers, and its corporate business, are not designated as the board of county commissioners, but are called the County Court: Article VII, Section 12 of the Constitution Section 937, L. O. L. When the county commissioners and the county judge are sitting thus for the transaction of county business, such County Court is an inferior tribunal: Article VII, Section 9, of the Constitution: Thompson v. Multnomah County, 2 Or. 34, 40; Johns v. Marion County, 4 Or. 46, 49; State v. Officer, 4 Or. 180, 183; Bewley v. Graves, 17 Or. 274, 282 (20 *393Pac. 322); State v. Myers, 20 Or. 442, 444 (26 Pac. 307); Cameron v. Wasco County, 27 Or. 318, 321 (41 Pac. 160); Grady v. Dundon, 30 Or. 333, 336 (47 Pac. 915); Kirkwood v. Washington County, 32 Or. 568 (52 Pac. 568); Munroe v. Thomas, 35 Or. 174, 175 (57 Pac. 419).
Section 1 of Article VII of the organic law of the state, as far as important herein, reads:
“The judicial power of the state shall he vested in a supreme court, circuit courts, and county courts, which shall be courts of record, having general jurisdiction, to be defined, limited, and regulated by law, in accordance with this constitution. ’ ’
This clause was amended by an exercise of.the initiative power at a general election held November 8,1910: Laws 1911, p. 7. The changes thus authorized, however, have never been made. The County Court has been given exclusive original jurisdiction in all probate matters: Section 936, L. O. L. In construing these provisions together it has uniformly been held that a County Court in the transaction of probate business is a tribunal of general and superior jurisdiction, and its orders in such cases are not subject to collateral attack: Russel v. Lewis, 3 Or. 380; Tustin v. Gaunt, 4 Or. 305; Monastes v. Catlin, 6 Or. 119; Bewley v. Graves, 17 Or. 274 (20 Pac. 322); Richardson’s Guardianship, 39 Or. 246 (64 Pac. 390); Slate’s Estate, 40 Or. 349 (68 Pac. 399); Smith v. Whiting, 55 Or. 393 (106 Pac. 791); Hillman v. Young, 64 Or. 73 (127 Pac. 793, 129 Pac. 124); Yeaton v. Barnhart, 78 Or. 249 (150 Pac. 742, 152 Pac. 1192). To the same effect, see Clark v. Rossier, 10 Idaho, 348 (78 Pac. 358, 3 Ann. Cas. 231); In re Creighton, 91 Neb. 654 (136 N. W. 1001, Ann. Cas. 1913D, 128); Kavanagh v. Hamilton, 53 Colo. 157 (125 Pac. 512, Ann. Cas. 1914B, 76).
*394The statute referring to the application of an administrator or executor for an order to sell real property belonging to the estate of a decedent, to discharge the debts thereof, 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.
The citation put forth and complained of in this suit was served by publication for the required time, informed Henry Fletcher, his sister, and all others interested in the estate of Charles W. Fletcher, deceased, that the administrator thereof had filed in the County Court his verified petition for an order to sell the real property of the estate or so much thereof as might be necessary to pay the claims and expenses against the estate, particularly describing the land, and notified such parties that the County Court had made an order directing a citation to be issued to them requiring them to appear at a time and place as hereinafter designated—
“to show cause if any exists, why the prayer of the administrator should not be granted. Now, therefore, in pursuance of said order of said court, you and each of you are hereby notified that you are required to appear at the county courtroom in the courthouse, at Coquille City, Coos Co., Oregon, on Wednesday, the 16th day of July, 1902, to show cause, if any exists, why the order of sale, as in said petition prayed for [ ] of the above described premises, or a sufficient portion thereof to pay the indebtedness against said estate and the expenses of administration thereof.”
*395The citation also stated that service thereof was made by publication pursuant to the County Court’s order of June 6, 1902, was signed by the county clerk three days thereafter, and sealed with his official seal. An examination of this citation will show that in the space indicated by brackets the phrase “should not be made for the sale,” or other words of equivalent import, were omitted. When, however, that notice is considered in its entirety, no doubt can possibly exist in respect to the purpose for which the heirs of Charles W. Fletcher were required to appear in the County Court, and probably for that reason their counsel takes no exception to such omission. Objection is made to the failure of the citation to state that the time in which such parties were required to appear was at a term of the County Court provided by Section 1254, L. O. L., and it is contended that by reason thereof the process was void on its face. Some of the cases cited as sustaining such view will be examined. In Hunsaker v. Coffin, 2 Or. 107, the summons served upon the defendant required him to appear and answer the complaint “forthwith,” when under the law then in force a summons was made returnable on the first day of the next term of court. The defendant in that action having failed to appear as notified, a default judgment was rendered against him on the next day after such service was made. Several years thereafter application was made for leave to issue execution on the judgment in order to prevent the statute of limitations from running against it, and the cause having reached this court it was held that such judgment was void. In that case the law having fixed a particular day for the return of the process, thereby prescribed the time for holding the court and not the time the court sat for transacting business: 11 Cyc. 726; *396Gird v. State, 1 Or. 308. In the case at bar the statute makes a citation returnable at a term of the County Court, and not at a particular day thereof as in the case relied upon. In that case, however, under the rule now generally prevailing the judgment there rendered would not be regarded void, and thus vulnerable to collateral attack, because the summons having been personally served upon that defendant, who was presumed to know the law prescribing the return day, he should have specially appeared on the first day of the next term and moved to set aside the judgment.
The case of Northcut v. Lemery, 8 Or. 316, was a collateral attack upon a decree of divorce pursuant to which the plaintiff by mesne conveyances obtained a deed of a tract of land. There was no evidence of the service of a summons upon the defendant in the divorce suit, other than a recital in the decree rendered therein as follows:
“And it further appearing that defendant had been served by publication as required by law.”
The statute then in force applicable to such cases required the service of a summons when made upon a nonresident to be published four weeks. The period thus limited could not possibly have elapsed when the divorce was granted, and it was held by this court that jurisdiction of the person of the defendant in that-suit had never been secured. The facts there stated are not applicable to the case at bar, for here the citation was published for the required time before the order for the sale of the land was made by the County Court.
In Wright v. Edwards, 10 Or. 298, which was a collateral attack upon the order of a County Court directing the sale of the realty of a decedent’s estate to pay the debts thereof, it was held that the application upon *397which, the order was predicated did not state facts sufficient to invoke an exercise of jurisdiction of the court so as to authorize it to grant the prayer of the petition, and for that reason the order was determined to be void. In the case at bar the petition was adequate for that purpose.
In White v. Johnson, 27 Or. 282 (40 Pac. 511, 50 Am. St. Rep. 726), the defendant died after that action was commenced, but before the summons was served, whereupon the cause was continued, by order of court, against Cordelia Johnson, the decedent’s executrix, who was allowed ten days in which to answer the complaint. The title of the cause was not changed by making her a party, and in the absence thereof the original summons, and copies of the complaint and of the order continuing the cause were personally served upon her. She appeared specially in the trial court for that purpose only, and moved to set aside the attempted service of process. The motion was denied, and, the executrix declining to plead, judgment was rendered in favor of the plaintiff for the sum demanded in the complaint, and she appealed. In reversing the judgment it was held that as the statute required a summons to contain the names of the parties to the action and the title thereof and to be directed to the defendant, such service did not give the court jurisdiction to render a judgment by default against the administratrix in her representative capacity. It will thus be seen that the question presented to this court was raised by an appeal which was a direct attack upon the judgment.
In Smith v. Whiting, 55 Or. 393 (106 Pac. 791), which was a collateral attack upon the validity of a probate order directing the sale of real property belonging to a decedent’s estate, it appeared that the *398citation addressed to the parties interested therein was served by publication notwithstanding some of them résided in Oregon, as to whom it was held that the order to sell the land was void. In that case there was no service whatever as to the parties residing in this state, a fact which will be hereinafter mentioned.
In Sanders v. Rains, 10 Mo. 478, it was ruled that a summons issued by a justice of the peace and made returnable in a time less than that allowed, by law was void, that a judgment by default rendered on the service of such summons was also void, and that the party acquired no title under a sale on an execution issued upon such judgment, which final determination was subject, to collateral attack on the ground that it was void. The judgment there complained of was given by a court of inferior jurisdiction, and has no application to the case at bar.
In Thompson v. Patterson, 2 Miles (Pa.), 146, a summons issued out of the District Court of Philadelphia, and made returnable at a day not authorized by law, was held bad and quashed upon a motion interposed in that court in proper time. That was certainly a direct attack.
In Crowell v. Galloway, 3 Neb. 215, under a statute which directed that a summons should be returnable on the second Monday after its date, it was held that if such process were made returnable at any other time it was void, and no jurisdiction of the defendant was secured, but that, if such party intended to rely upon the want of power to hear and determine the cause, he should have appeared specially for that purpose only, but by his general appearance he acknowledged jurisdiction, and the judgment so rendered against him was affirmed on appeal. It will thus be seen that the *399attack was not collateral, and the decision rendered on appeal is not in point here.
In State v. Parks, 34 Okl. 335 (126 Pac. 242), it was decided that a summons issued March 6th and returnable in ten days, but which process required the defendant to appear and answer March 26th, should have been quashed on motion. That was a direct attack; and had a motion of that kind been interposed in the County Court of Coos County, Oregon, within the time prescribed by law, the order of sale of the land might have been set aside in consequence of irregularities in the citation which was published.
In North Pacific Cycle Co. v. Thomas, 26 Or. 381, 383 (38 Pac. 307, 46 Am. St. Rep. 636), Mr. Chief Justice Bean, in speaking of the service of process, says:
“There is an important difference between a want of jurisdiction and a mere defect in obtaining it. In the former case the judgment is absolutely void, and may be impeached whenever it is sought to be used as a valid judgment; but in the latter case it is simply erroneous and voidable, and can be attacked only in some direct proceeding authorized by law. When there is some irregularity in the form of the process, or in the manner of its service, the party served can take advantage thereof by some appropriate proceedings in the court where the action is pending, and by neglecting to do so he waives the irregularity and cannot attack the judgment in a collateral proceeding.”
In Moore Realty Co. v. Carr, 61 Or. 34, 39 (120 Pac. 742, 744), Mr. Chief Justice Eakin, in discussing the service of process by publication, 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 following cases are all collateral attacks upon judgments or *400decrees rendered on service for (by) publication, and it was held in each that, although the service was defective or irregular, it did not render the judgment void, and was sufficient ag’ainst a collateral attack”— citing many cases.
In commenting upon the same legal principle, in Quarl v. Abbett, 102 Ind. 233, 240 (52 Am. Rep. 662), Mr. Justice Elliott, a noted author and distinguished jurist, observes:
“Where there is some notice, although defective, the judgment is not void; if there is notice, although irregular and defective, there is jurisdiction (citing authorities). The rule with respect to notice by publication is the same as to notice by service of summons; there is, indeed, reason for being more liberal in cases of constructive notice than in cases where the service is by summons, for the defendant in the former class of cases is entitled, as of right, to open the judgment and try the cause. It is a mistake to suppose the notice of publication is purely of statutory origin, for it was well known in chancery and at common law: 3 Bl. Com. 283, 244; Hahn v. Kelly, 34 Cal. 391 (94 Am. Dec. 742). There is therefore no valid reason why the same presumption should not obtain in cases where the notice is by publication as where it is by service of summons, and the weight of authority is to that effect” — citing cases.
In Wilson v. Wilson, 255 Mo. 528 (164 S. W. 561), in applying for authority to sell real property belonging to a decedent’s estate the process published required the persons named therein to appear “before” instead of “at” the day fixed in the order, and it was held that the mistake was a harmless irregularity.
By the citation which was published in the case at bar for the required time Henry Fletcher and his sister were informed when and where they were required to appear, and .the time so designated was at a day of the *401regular term of the County Court. Under the rule announced in North Pacific Cycle Co. v. Thomas, supra, and followed in Perry v. Gholson, 39 Or. 438 (65 Pac. 601, 87 Am. St. Rep. 685), and in Stanley v. Rachofsky, 50 Or. 472 (93 Pac. 354), though the citation was irregular in the respects mentioned the order based thereon is not void, and for that reason we adhere to the opinion reversing the decree.
Opinion on First Rehearing Approved.
Mr. Justice Benson and Mr. Justice Harris concur in the result. Mr. Justice McCamant took no part in the consideration hereof.