ON PETITION FOR REHEARING. The statute provides that when an administrator files his petition for the sale of the real estate of his decedent, he shall cause an appraisement of the real estate to be made, which appraisement shall be filed in court on or before the hearing of the petition. Acts 1881 (Spec. Sess.) p. 423, § 120, § 3192 Burns 1926. Section 128 of the same act, § 3200 Burns 1926, provides that, previous to the making of an order for the sale of real estate, the administrator shall file a bond in double the appraised value of the real estate ordered sold.
While the complaint in the instant case alleges that no appraisement of the real estate was made and filed until long after the original order of sale was made, there is no 9-11. evidence to sustain this allegation. There is no evidence as to whether an appraisement was or was not filed at the time of or prior to the hearing of the petition to sell and the entering of the *Page 79 order of sale. The petition for the sale of the real estate, the cross-complaint filed in that proceedings, all the other pleadings therein, together with certain entries and orders of the court, including the decree ordering the real estate sold, were introduced in evidence. No appraisement was introduced in evidence, but there is no evidence from which it can be inferred that the papers and entries so introduced in evidence were all of the papers filed or that all of the entries in the cause had been introduced in evidence. With this condition of the record in mind, we said: "If the filing of an appraisement was necessary, as appellants contend, to give the court jurisdiction to make the order of sale, we ought, in the absence of any evidence, presume that the jurisdictional steps had been taken and that an inventory had been filed." The appellants had the burden of proving the invalidity of the order of the court directing the sale of the real estate. In this, they failed. The Grant Circuit Court is a court of general jurisdiction in the administering of estates, and every necessary fact not negatived by the record is presumed in favor of the judgment, and if necessary to support an order of sale of the decedent's lands, it will be presumed, on collateral attack, that the proper appraisement was filed. SeeHall v. Ewing (1920), 149 Ga. 693, 101 S.E. 807.
Section 3220 Burns 1926, Acts 1881 (Spec. Sess.) p. 240, § 612, provides that no sale of any real estate by an executor, administrator, or guardian shall be avoided on account of any irregularity or defect in the proceedings if it shall appear: (1) That the sale was authorized by the court having jurisdiction of the parties and the subject-matter; (2) that bond was given as required by law; (3) that notice was given as provided by law; and (4) that the premises were sold accordingly and are held by or under one who purchased in good faith.
The administrator in the instant case, being a trust *Page 80 company, was not required to give a bond. § 3955 Burns 1926, Acts 1913 p. 567, § 2, amending § 14 of acts 1893. The failure 12. of a guardian to file a bond as required by § 3397 Burns 1926, Acts 1891 p. 80, amounts to no more than an irregularity and does not render a sale by the guardian void.McKeever v. Ball (1880), 71 Ind. 398; Davidson v. Bates (1887), 111 Ind. 391, 12 N.E. 687. See, also, Maple v. Shoyer (1839), 1 Blackf. (Ind.) 561.
In Kentucky, where the Civil Code practice requires a bond to be given before judgment shall be rendered against a defendant constructively summoned, it has been held that the failure to give the required bond did not render the judgment void, but simply erroneous. Oldham v. McElroy, Sheriff (1909), 134 Ky. 454, 121 S.W. 414; Bethel College v. Gladdish (1924), 204 Ky. 10, 263 S.W. 659.
Conceding, without so deciding, that appellants are correct in their contention that the filing of an appraisement is a jurisdictional step necessary to give the court authority to order the sale of real estate by an administrator, we hold that appellants have failed to prove a failure to file such an appraisement.
For cases bearing upon a collateral attack upon a court having general jurisdiction over a subject-matter, see Crossley v.O'Brien (1865), 24 Ind. 325, 87 Am. Dec. 329; Spaulding v.Baldwin (1869), 31 Ind. 376; Argo v. Barthand (1881),80 Ind. 63; City of Delphi v. Startzman (1885), 104 Ind. 343, 3 N.E. 937; Evansville Ice, etc., Co. v. Wisner (1897),148 Ind. 682, 48 N.E. 592; Bruce v. Osgood (1900), 154 Ind. 375, 56 N.E. 25; Driver v. Driver (1899), 153 Ind. 88, 54 N.E. 389; Wills v. Wills (1911), 176 Ind. 631, 96 N.E. 763;Stone v. Elliott (1914), 182 Ind. 454, 106 N.E. 710.
Rehearing denied. *Page 81