Adams v. Carson

Decision Date03 October 1933
Docket NumberCase Number: 21516
Citation165 Okla. 161,1933 OK 506,25 P.2d 653
PartiesADAMS v. CARSON
CourtOklahoma Supreme Court
Syllabus

¶0 1. Judgment--Recitals as to Service of Summons and Revivor of Action not Subject to Collateral Attack.

Where the judgment roll shows service of summons, and revivor of action, such recitals thereof are subject to direct attack, but not to collateral attack.

2. Judgment--When Judgment Void on Face.

A judgment is void on its face when its invalidity is affirmatively disclosed by an inspection of the judgment roll, but it is not void in a legal sense, for want of jurisdiction, unless its invalidity appears on the face of the record.

3. Judgment--Motion for Revivor not Part of Record or Judgment Roll.

A motion for revivor constitutes no part of the record or judgment roll.

4. Judgment--Validity of Mortgage Foreclosure -- Proceedings Occurring After Death of Plaintiff and Before Order of Revivor Held Erroneous but not Subject to Collateral Attack.

Where an action is filed to foreclose a real estate mortgage and summons issued and served on all defendants except one, and plaintiff dies, and prior to the entry of an order of revivor an alias summons is issued and served upon said defendant, who does not appear, but suffers a default judgment to be entered against him for foreclosure of said real estate mortgage, and thereafter said defendant who was served after the death of said plaintiff institutes a collateral attack on said default judgment, held, that the trial court did not lose jurisdiction of said cause by the death of said plaintiff, and the proceedings occurring after his death and prior to the entry of an order of revivor were merely erroneous and voidable, but not void and not subject to collateral attack.

Appeal from District Court, Pottawatomie County: Hal Johnson, Judge.

Action by W. W. Adams against E. T. Carson et al. Demurrer to plaintiff's evidence sustained and cause dismissed, and he appeals. Affirmed.

J. D. Lydick, Eugene Jordan, and McPherren & Maurer, for plaintiff in error.

Arrington & Evans and R. H. Hudson, for defendants in error.

OSBORN, J.

¶1 This action was filed in the district court of Pottawatomie county by W. W. Adams against E. T. Carson, C. J.

¶2 Becker, M. A. Vaughn, Phillips Petroleum Company, a corporation, H. L. Guild, R. N. Hargrove, Sara E. Wilsie, Paul Loy, Roy Jenkins. L. G. Vaughn, Mary M. Seaton, Robinson-Johnson Motor Company, a corporation, T. W. Robinson, and Paul X. Johnston, and is an action to cancel and set aside a judgment foreclosing a real estate mortgage on certain lands situated in said county. The parties will be referred to as they appeared in the trial court.

¶3 Upon a trial in the district court a demurrer to the evidence of plaintiff was sustained and the cause dismissed, from which order plaintiff has lodged this appeal.

¶4 The record shows that the lands in question were owned by A. G. Adams and Charlotte L. Adams, the parents of plaintiff, that on September 27, 1921, they executed a mortgage on said lands to the Conservative Loan & Trust Company, which was thereafter assigned to one Frank D. Ramsey, who instituted foreclosure proceedings in the superior court of Pottawatomie county on December 31, 1923; that summons was duly served upon A. G. Adams and Charlotte L. Adams, and thereafter, when it appeared that they had executed a warranty deed to said property to the plaintiff, a summons was issued to him. It is shown that Frank D. Ramsey died on September 13, 1924; that a motion to revive said action in the name of Luther R. Ramsey, administrator of the estate of Frank D. Ramsey, was filed on October 24, 1924. The summons to W. W. Adams was issued on October 18, 1924, after the death of Frank D. Ramsey and prior to the filing of motion for revivor, and as to him the proceeding was one in rem. A notice of revivor was served upon plaintiff herein on January 30, 1925, said notice stating that the motion would be heard on March 16, 1925.

¶5 No appearance was made and no pleadings were filed in said foreclosure action by plaintiff herein, and on October 12, 1925, a judgment of foreclosure by default was entered, a receiver was appointed, who collected the rentals from the plaintiff herein, and on August 31, 1926, the lands were sold at sheriff's sale to one Eva Neddeau, and the sale confirmed September 7, 1926. This action was filed on May 25, 1929.

¶6 Plaintiff contends that the judgment of foreclosure is void on its face and consequently he is not required to plead or prove a meritorious defense to said action, and that the defendants who have acquired various interests in said lands through the purchaser thereof at sheriff's sale are mere mortgagees in possession and plaintiff is entitled to redeem said lands by paying the amount of the mortgage indebtedness with interest, which he tenders into court, and to have title to said lands quieted in him.

¶7 Plaintiff contends that the summons issued to him in the foreclosure proceeding is fatally defective, said defect being shown in the officer's return. Said summons is hereinafter set out in full as follows:

"Summons--Superior Court
"State of Oklahoma
"Pottawatomie Countyss
"The State of Oklahoma, to the Sheriff of Osage County, Greetings:
"You are hereby commanded to notify W. W. Adams (Wynona, Okla.) that he has been sued by Frank D. Ramsey in the superior court of Pottawatomie county, Okla., and that he must answer the petition of said plaintiff Frank D. Ramsey filed against him in the clerk's office of said court on or before the 20th day of November, 1924, or said petition will be taken as true and judgment will be rendered accordingly.
"You will make due return of this summons on or before the 31 day of October, 1924.
"Given under my hand and the seal of said court this 18 day of October, 1924.
"Mabel Marlatt, Court Clerk."
(Signature printed as part of summons)
"By Mahlon McKellar, Deputy
"(Seal)
"Suit brought for foreclosure
"If the defendant fail to answer, judgment will be taken for the sum of $ , with interest at the rate of per centum per annum from the day of , 19 .
"Mable Marlatt, Clerk."
(Signature printed as a part of summons)
"By Mahlon McKellar, Deputy.
"I received this summons the 31 day of October, 1924, and executed the same in my county by delivering a true copy of the within summons with all the indorsements thereon to W. W. Adams.
"10-23-24
"C. A. Cook, Sheriff.
"By S. Srahy, Deputy
"Indorsed:
"Case No. 5091, Summons, Frank D. Ramsey, Plaintiff, v. A. G. Adams et al., Defendant, Issued Oct. 18, 1924, returnable Oct. 31, 1924, answer due Nov. 20, 1924, J. E. Whitehead, Attorney for Plaintiff.
"Filed in Superior Court Nov. 6, 1924, Pottawatomie County, Okla. Mable Marlatt, Court Clerk, by Mahlon McKellar, Deputy."

¶8 It is noted that the sheriff certified that he received the summons on October 31, 1924, and served the same on October 23, 1924. Plaintiff contends that, under the recital in the return, it was impossible for the sheriff to serve said summons on October 23, 1924, and that a proper construction of said return would be that if the summons was served subsequent to October 31, 1924, it would allow less than 20 days to the defendant to answer.

¶9 Plaintiff did not offer testimony contradicting the recital in the sheriff's return that said summons was served on October 23, 1924, as set forth therein. He did not attempt to prove that the summons was not served upon him in any event, nor that same was served subsequent to October 31, 1924. His position is purely technical, and based upon the face of the record which shows irregularity. Jurisdiction of the person of the defendant in that action (plaintiff herein) could be obtained by the service of summons upon him. On this necessary step he had a right to insist, both in the original proceeding and in this action; but whether the sheriff indorsed on the original writ the correct day and hour of the receipt by him of the summons served upon plaintiff herein, as provided by section 879, C. O. S. 1921, was immaterial to the jurisdiction of the court to proceed in the cause. The fact of service, and not the mere incorrect recital of the sheriff as to the time of receipt of the writ, constituted the criterion of jurisdiction of the person of plaintiff in said action. The irregularity of the sheriff's recital, if called to the attention of the court in the original proceeding, could have been promptly and effectively corrected. But such irregularity cannot be challenged in an independent collateral proceeding. Goddard v. Harbour (Kan.) 44 P. 1055; Warren v. Wilner (Kan.) 60 P. 745; Orchard v. Peake (Kan.) 77 P. 281. That this proceeding is a collateral attack upon the judgment in the original cause is beyond question. Bruno v. Getzelman, 70 Okla. 143, 173 P. 850.

¶10 As a further basis for plaintiff's contention that the judgment in the original action is void, plaintiff asserts that no order of revivor was entered in said cause following the death of plaintiff, Frank D. Ramsey. In this connection the record shows that a motion for revivor was filed October 24, 1924, and on January 30, 1925, a notice was served on plaintiff herein, notifying him that said motion for revivor would be presented to the court on March 16, 1925, or as soon thereafter as the same could be heard; that this notice was delivered to said plaintiff in person by the sheriff of Osage county, as shown by the sheriff's return. The record does not show that a formal order of revivor was entered on the 16th of March, 1925; however, on October 12, 1925, a final judgment in said cause was entered, in which the following recital appears:

"On this, the 12th day of October, 1925, the same being one of the regular judicial days of the October term of said court, came on for hearing in its regular order the above styled and numbered cause, and came the plaintiff by his attorneys J. E. Whitehead and C. H. Davis and announced ready for trial, and it appearing
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