American Surety Company of New York v. Mosher

• Decision Date: 28 December 1936
• Docket Number: Civil 3742
• Citation: 64 P.2d 1025,48 Ariz. 552
• Parties: AMERICAN SURETY COMPANY OF NEW YORK, Appellant, v. HATTIE L. MOSHER, Appellee
• Court: Arizona Supreme Court

64 P.2d 1025

48 Ariz. 552

AMERICAN SURETY COMPANY OF NEW YORK, Appellant, v. HATTIE L. MOSHER, Appellee

Civil No. 3742

Supreme Court of Arizona

December 28, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed and cause remanded, with instructions.

Messrs Townsend & Jenckes, for Appellant.

Mr John W. Ray, for Appellee.

OPINION

LOCKWOOD, C.J.

Hattie L. Mosher brought suit against the American Surety Company of New York, hereinafter called the company, asking that a certain judgment in cause No. 38152, in the Superior Court of Maricopa County, wherein the company was plaintiff and Mosher defendant, and all proceedings taken by virtue of said judgment, be declared null and void; that the cause be reopened and the issues thereof be relitigated.

The complaint is voluminous and we summarize it as follows: It states that in the previous action the company brought suit against her on an alleged indebtedness secured by a certain mortgage, and that replying to such suit, she demurred on the ground of the statute of limitations. The case was then pending on the complaint and demurrer in Division No. 2 of the Superior Court of Maricopa County presided over by the Honorable JOSEPH S. JENCKES, and without notice to her and without any formal motion therefor, he transferred the case to the Honorable HOWARD C. SPEAKMAN, one of the other judges of said court. The matter then remained in status quo before Judge SPEAKMAN for some eighteen months, when he, without any notice to Mosher that any action was to be taken and without complying with the rules of said Superior Court of Maricopa County in regard to the time in which such matters should be heard, overruled the demurrer without granting leave to answer, and on the 30th day of July, 1934, signed a judgment, which was filed with the clerk of said court, in favor of the company and against Mosher, notwithstanding the fact that Mosher had, on the same day and prior to the time said judgment was filed, filed an answer denying the allegations of the company's complaint, and served a copy of said denial upon the attorneys for the company, and that they had failed to notify the trial judge of said fact for the fraudulent purpose of obtaining a judgment on a default. The property mortgaged was sold by virtue of said judgment and bid in by the company, and thereafter redeemed by one of the judgment creditors of Mosher. She twice moved, after the judgment was rendered, to have it set aside and attempted to appeal from it, but the appeal was later dismissed by this court. She further alleged that the judgment of foreclosure was void for the reason that it was not rendered in conformity with rule 7 of the Uniform Rules of the Superior Courts, in that no copy of the proposed judgment was ever served upon her, and no judgment was rendered in accordance with said rule.

To this complaint, the company demurred on the ground that it did not state a cause of action. As a basis for the demurrer, it claimed the records in cause No. 38152, which were made a part of the complaint in the present case, showed that in said cause Mosher attacked the judgment upon the same grounds set up in the complaint in the present action, by two motions to vacate and set the same aside, and that upon hearing said motions, the court entered its order denying them, it being the claim of the company that the ruling of the court on said motions is res adjudicata, and that plaintiff is estopped from again litigating the same in a different action. It further set up as a plea in bar the attempt of plaintiff to vacate the judgment by motion as aforesaid and, replying to the allegation that the foreclosure judgment was not rendered in accordance with rule 7, alleged that on the 1st day of October, 1935, the Superior Court of Maricopa County entered upon its minutes an order nunc pro tunc as of July 30, 1934, the date on which the judgment of foreclosure was filed with the clerk of said court, entering said judgment as of said July 30, 1934, in accordance with the written judgment which was rendered and signed in open court on the 30th day of July aforesaid. The trial court held that, except as to the alleged failure to render judgment in compliance with rule 7, all the matters set forth in plaintiff's complaint would have been barred by the judgment and motions in said cause No. 38152 had said judgment been rendered as required by rule 7, but that the failure to comply with the rule rendered the judgment void and of no effect and, therefore, all proceedings dependent on its validity also failed, and ordered that Mosher be permitted to file an answer in cause No. 38152, and that the same be tried upon its merits.

It will be seen by the foregoing summary of the complaint that this proceeding is a direct attack upon a judgment by a separate suit, the attack, being based, in effect, upon two grounds: (a) That fraud was committed upon the trial court in obtaining the alleged judgment of July 30, 1934, by carrying the case through the various necessary steps in the superior court in violation of the rules of said court, and without proper notice to Mosher or her attorney or the court itself, of the true situation; and (b) that the alleged judgment itself was void because it was not rendered in accordance with rule 7.

We think the trial court properly held that plaintiff herein is estopped from attacking the judgment on any ground except that it was not rendered in accordance with rule 7. It appears from the record of this case that she moved to vacate the judgment of July 30th and set forth in her motion substantially the same allegations which she sets up in her present suit, including the claim that the judgment signed and filed by the court was never served on her, and that these motions to vacate were denied by the trial court; that she appealed from the judgment; and that the appeal was dismissed. There are many cases which hold, under similar circumstances, the decision of the court on motions of this kind is a bar to an independent action to cancel or set aside the judgment on the same grounds. In Bernhard v. Idaho Bank & Trust Co., 21 Idaho 598, 123 P. 481, 483, Ann. Cas. 1913E 120, an action was brought as here, to have a judgment and execution declared void. It appeared from the complaint that a judgment had been rendered in a previous action against the plaintiff in the instant case and it was claimed that for many reasons said judgment was void. It also appeared, however, that in the previous case the then defendant had moved to vacate the judgment, setting up the same grounds in substance which were raised by the complaint in the later suit to have the previous judgment declared void. The court said, in substance, as follows:

"Under the law two remedies were open to the appellant in this matter: He could either move in the original action to have the judgment set aside on the ground that the summons had not been served on him and that the court had acquired no jurisdiction of his person, or he could have instituted this action to have said judgment set aside and to enjoin the collection of it. He made his selection, and, having proceeded by motion in the original action to have the judgment set aside, selected that as his remedy, and when the court decided the motion against him, the only recourse he had left was to appeal. It was then too late for him to abandon that remedy and pursue the remedy he is attempting to pursue in the action at bar."

See, also, Thompson v. Connell, 31 Or. 231, 48 P. 467, 65 Am. St. Rep. 818; Pierce County v. Alexander, 49 Wash. 599, 96 P. 164. Under our practice, a party aggrieved by a judgment has the same two remedies as those referred to in the Idaho case. He may move to vacate the judgment, or, if his grounds go to its validity and not to its righteousness, he may bring an independent suit to have it set aside, but, having chosen the one course, he should not be permitted, if he fails therein, to take the other. We therefore hold, as did the trial court, that plaintiff in the present suit is estopped from maintaining the judgment in the foreclosure action was void for any of the reasons set up in her motions to vacate made in such foreclosure action, which include all of the grounds raised by the plaintiff in the persent case, with the exception of the one that the portion of rule 7 in regard to the rendition of the judgment was violated. The ground was not specifically raised on the motion to vacate, and since it is claimed that it goes to the jurisdiction of the court, may be raised by an independent action, such as the present one. We therefore consider that point only.

The portion of rule 7 which is under consideration reads as follows:

"No judgment shall be rendered by any Superior Court unless simultaneously with such rendition there shall be filed with the clerk a formal written judgment, signed by the trial judge."

It appears from the records in the present case that on the 30th day of July, 1934, the Honorable HOWARD C. SPEAKMAN, one of the duly elected, qualified, and acting judges of the Superior Court of Maricopa County, and the one before whom the foreclosure proceeding was pending, signed and filed with the clerk of the court a written document. This document was entitled, "Judgment and decree of foreclosure and sale" in the pending case, and recited as follows:

"This cause coming on to be heard this 9th day of July, 1934, upon plaintiff's motion for an order finding the defendant Hattie L. Mosher in default for want of an answer herein, and for judgment in favor of the plaintiff upon the pleadings filed in said cause, plaintiff appearing by Joseph S. Jenckes of Townsend, Jenckes &...