Freeman v. McClung

[33]

SALSMAN, J.

Appellant, Wilson Freeman, filed a complaint against respondents to quiet title to a parcel of real property on the ground of adverse possession; respondents answered and filed cross-complaints to quiet their respective titles to fractional interests claimed by each of them in the same property. After trial the court denied appellants any relief and quieted the title of the various respondents as prayed for in their cross-complaints. This appeal followed.

Appellants do not challenge that portion of the judgment which denied their claim to title by adverse possession. They further admit the judgment in favor of respondents Edwin M. Fraser and Catherine E. Fraser is proper. Appellants’ principal complaint on appeal is that the judgment in favor of respondents Pappas and Stathes is erroneous because their interest, so it is claimed, is based upon a void order of the probate court confirming a sale of that interest while held in the estate of Kate Melson. This issue was not litigated in the trial court, but the entire record in the estate of Kate Melson was in evidence and it contains the notice of sale, petition for confirmation of sale, and order confirming sale, and these are the proceedings which appellants claim are invalid and render the order confirming sale void.

The order confirming sale of the real property in the estate of Kate Melson was an appealable order.

(Estate of Smead, 12

Cal.2d 20 [82 P.2d 182].) No appeal was ever taken from that order, however, and appellants’ challenge to it here is purely a collateral attack upon the order. Generally an order such as the one involved here cannot be impeached in a collateral attack for errors and irregularities, but is subject to attack for lack of jurisdiction on the part of the court making the order.

(Milstein

v.

Turner,

89 Cal.App.2d 296, 298 [200 P.2d 799].) The order is presumed to be valid and the burden is upon appellants therefore to show lack of jurisdiction. (See

Craney