Opinion
No. 3892.
November 23, 1939. Rehearing Denied January 4, 1940.
Appeal from District Court, El Paso County; W. D. Howe, Judge.
Proceeding by Anna Olsen Einarsmo Valand and others against M. V. Ward, administrator of the estate of John Spelling, deceased, and the unknown heirs of deceased, filed in administration pending in county court, for an adjudication of heirship of deceased and interests of his heirs in his estate. From judgment for petitioners, the administrator appeals.
Affirmed.
This is a proceeding originating in the County Court of E1 Paso County, brought by Anna Olsen Einarsmo Valand and others, filed in the administration pending in said Court upon the Estate of John Spelling, deceased. The petitioners complained of M. V. Ward, Administrator of the Estate of John Spelling, deceased, and the unknown heirs of said Spelling. The petitioners are residents of the Kingdom of Norway, and assert they are the sole and only heirs of the deceased Spelling, being his brother and sisters. The petition sought an adjudication of the heirship of said Spelling and the interests of his heirs therein and that petitioners be adjudged to be his only heirs, each entitled to a one-fourth interest in his estate. The Court appointed an attorney for the unknown heirs who filed an answer and appeared in their behalf in both of the lower courts. The relief sought by the petitioners was granted by the Probate Court. Appeal was taken to the District Court by the Administrator, where the same judgment was rendered, to which the Administrator excepted and prosecutes this appeal.
M. V. Ward, of E1 Paso, for appellant.
Theo. Andress, of El Paso, for appellee.
The petition was verified by the petitioners in Norway before a notary public of that Kingdom. It is objected that a notary public commissioned under the laws of Norway had no authority to take the affidavits of the petitioners. Article 26, Revised Statutes, provides:
"All oaths, affidavits or affirmations may be administered and a certificate of the fact given:
* * * * * *
"3. If without the United States, before any notary public, or any minister, commissioner or charge d'affaires of the United States, resident in and accredited to the country where the affidavit may be taken, or any consul general, consul, vice-consul, commercial agent, vice-commercial agent, deputy consul, or consular agent of the United States, resident in such country."
As we understand appellant's theory, the words "notary public" appearing in the third subsection of said Article are qualified by the phrases "resident in and accredited to the country where the affidavit may be taken" and "resident in such country." The words "notary public" are followed by the word "or," and the qualifying phrases mentioned have no relation to or qualifying effect upon the words "notary public." The objection indicated is without merit.
The sufficiency of the citation to the unknown heirs of Spelling and service thereof are questioned. We express no opinion as to the merits of the sufficiency of such citation and service. Assuming they were defective, the unknown heirs have not appealed from the judgment rendered. The Court had complete jurisdiction over the Administrator, and the judgment rendered is conclusive upon such Administrator and will protect him in any action taken by him in obedience to the judgment. Article 3595, R.S. He is not in a position to complain of the defect, if any, in the citation to the unknown heirs and the service thereof. They have not seen fit to appeal from the judgment rendered.
This disposes of all questions presented by appellant.
The judgment is affirmed.