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In Re Estate of Luer





Appeal by plaintiff from the Circuit Court of Madison county; the Hon. WILLIAM G. JUERGENS, Judge, presiding. Heard in this court at the May term, 1952. Judgment affirmed. Opinion filed November 7, 1952. Released for publication December 8, 1952.


The Estate of August Luer, deceased, was administered in the probate court of Madison county with appellee, Alton Banking & Trust Company, a corporation, the executor. Augusta M. Turner was a daughter and one of the heirs of said deceased. She petitioned the probate court to issue a citation against the executor to show cause why it should not be removed as executor and its accounts surcharged with various amounts, on the ground that the executor was guilty of fraud.

Pursuant to citation, the executor answered under oath, asserting that all the questions presented had been finally adjudicated in prior proceedings in courts of competent jurisdiction. The probate court decided for the executor. An appeal was perfected to the circuit court where the same contentions were heard, with appropriate reference to court proceedings. The same result was reached.

In the meantime, Augusta M. Turner died and Helen T. Winter as ancillary administrator of her estate was substituted as a party, and she has perfected this appeal.

It is first contended by appellant that the executor did not answer the charges made, as required by law, and therefore should be considered to have admitted all the charges of fraud and conspiracy made against it. This contention cannot be sustained. The law recognizes that there must be an end to litigation, and if the assertions made by appellant had been previously adjudicated in proper proceedings, the executor was entitled to present that defense. This it did by a sworn answer and motion to strike. The issues presented were the same in both courts below. We hold that the court had properly before it the question whether prior judgments were a bar to the present litigation.

There is no doubt that various acts of the executor now under attack were approved by the probate court in final judgments entered after due notice to all interested parties, including Mrs. Turner. She has also contested the same issues in suits in federal courts, hereafter mentioned. But it is appellant's theory that the finality of all such judgments is beside the point, because she charges FRAUD. Upon the basis that "fraud vitiates everything" she asserts that all prior final judgments of the probate court, and other courts, must now be reopened for further review and reconsideration.

This presents the question whether, under any principle of law or equity, the finality of a judgment has no effect against a charge of fraud, or whether the nature of the charges and issues must be considered.

While there are loose statements in decided cases to the general effect that "fraud vitiates everything," it will be apparent that courts have been forced by necessity to limit the application of this doctrine. If a second trial is allowed merely on the ground that in the first hearing, the opponent swore falsely, or concealed facts, without any showing that the complaining party was unaware of the truth, there could be no finality in any judgment. After a second adverse decision, complaint could again be made as to false testimony and concealment on the second trial, and so on ad infinitum.

On the other hand, cases arise in which a party is prevented by fraud of his opponent from presenting the merits of the case to the court. Or, in spite of due diligence, a mistake or accident may intervene, without fault of the complaining party, resulting in an unjust decision. Or a third party may be affected by a judgment, without notice of the pending suit. In this limited class of cases, a final judgment may be attacked after thirty days (formerly after the term) on the ground of fraud, accident or mistake.

Thus, if a party was prevented from presenting the merits of his case by the fraud of his opponent, or by mistake, unmixed with any omission, negligence or fault on his own part, he could attack the final judgment after the term. Ward v. Durham, 134 Ill. 195. But false testimony, or false assertions of liability, cannot be advanced as grounds for setting aside such a judgment, for if that were permitted, there could never be an end to litigation. Galena & S.W.R. Co. v. Ennor, 116 Ill. 55. See also: Burton v. Perry, 146 Ill. 71; Beck v. Lash, 303 Ill. 549; People v. Sterling, 357 Ill. 354. And in Nash v. Park Castles Apt. Bldg. Corp., 384 Ill. 68, the rules as to a person not a party to the suit were considered.

From these and many other decisions, there emerges the fixed principle that, in a collateral proceeding, the attack on a final judgment on the ground of fraud, accident or mistake, is limited to situations where the court's jurisdiction (or colorable jurisdiction) was based upon the fraud, accident or mistake; and it does not include the right to attack such judgment on the ground it was obtained by false testimony, concealment or the like.

Also, we deem it unnecessary to cite authority for the common rule that a final judgment is not subject to collateral attack on the mere ground that the court exercised bad judgment, or erred in the application of rules of law, in deciding the merits of the case.

The next question is whether these principles apply to orders entered in probate. There has been some confusion on this subject, due to the recognition of a "continuing jurisdiction" in a probate court, which is equitable in nature. However, when the question has been squarely presented, the principles have been applied in probate. Thus, in 1877, our Supreme Court held that, after an order directing a sale, an objection to the necessity or propriety of the sale, made on the application to approve the sale, was barred as a collateral attack on the prior order. It further held that inadequacy of price is not, in itself, sufficient ground for disapproval of the sale, especially when there is no guaranty or assurance of a better price on re-sale. Allen v. Shepard, 87 Ill. 314.

Other cases recognizing the finality of judgments in probate are: Commissioners of Lincoln Park v. Schmidt, 395 Ill. 316; Healea v. Verne, 343 Ill. 325; Lewis v. Blumenthal, 395 Ill. 588; Wood v. First Nat'l Bank of Woodlawn, 383 Ill. 515; Dean ...

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