Ayers, Weatherwax & Reid Co. v. Sundback
| Decision Date | 21 February 1894 |
| Citation | 58 N.W. 4,5 S.D. 31 |
| Parties | AYERS, WEATHERWAX & REID CO. v. SUNDBACK, Sheriff. [1] |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The county courts of this state are courts of limited and special jurisdiction.
2. As to courts of limited or special jurisdiction, it is only after jurisdiction is affirmatively shown that the presumption of the validity and regularity of their proceedings attaches.
3. Does the voluntary appearance of a defendant in such court do away with the necessity for a summons as a part of the judgment roll, so that such judgment roll, in which no summons appears or is accounted for, is sufficient to prove the judgment, as against the rights of a stranger to it? Quaere.
4. A mortgage upon a stock of goods, which recites that it is the intention of the parties that the mortgagor shall, by additions, keep the stock up to its then value, is not on that account presumptively fraudulent on its face.
5. Where, under such a mortgage intended to cover additions possession is taken by the mortgagee of the entire stock including such additions, his right thereto is paramount to that of a creditor, whose judgment and execution were subsequent to such change of possession.
6. The mortgage not being presumptively void; the mortgagee having taken possession under it; it not being shown that the sheriff had or was chargeable with notice of facts which would tend to make the mortgage fraudulent in fact, and not being directed or requested to levy upon such stock, or any part of it,--it was error to charge the jury, as matter of law, that the sheriff was liable for neglect to levy an execution then in his hands for collection upon such stock even though, upon the trial of such action against the sheriff for failure to collect such execution, such extrinsic facts were shown as would make the mortgage fraudulent as against creditors.
Appeal from circuit court, Minnehaha county; Frank R. Aikens, Judge.
Action by the Ayers, Weatherwax & Reid Company against John Sundback, sheriff, to recover for neglect of duty. Plaintiff had judgment, and defendant appeals. Reversed.
Joe Kirby, for appellant. J. W. Jones, for respondent.
The respondent, as plaintiff, brought this action against appellant, as sheriff of Minnehaha county, on account of his neglect to collect a judgment upon which execution was issued and delivered to him. The complaint alleged that plaintiff recovered judgment against one A. S. Kilroy in the county court of Minnehaha county, caused execution to be issued thereon, and delivered for collection to defendant, as sheriff; that Kilroy had and owned personal property subject to execution in said county, sufficient to satisfy the execution, to the knowledge of defendant, yet he refused to levy upon the same, or in any manner collect said execution, but returned the same unsatisfied. The answer denied the allegations of the complaint, except as to defendant's official character, and pleaded affirmatively, in defense, that, if said Kilroy had or owned any property in said county, the same was subject to and covered by mortgage for its full value, made by him as mortgagor, and duly of record, and that plaintiff did not pay or tender to the mortgagee the amount of said mortgage debt, or deposit the same with the county treasurer for the mortgagee. At the close of the evidence the court directed the jury to return a verdict for the plaintiff. Upon such verdict, judgment was rendered, and the defendant appeals.
The theory of the plaintiff below and of the trial court seems to have been that the sheriff was liable because he did not seize property of Kilroy covered by a chattel mortgage which, upon the trial, the court evidently regarded fraudulent as against creditors. The judgment upon which the execution mentioned in the complaint was issued was a judgment of the county court of Minnehaha county. Such court is a court of limited and special jurisdiction, in this state. Nelson v. Ladd, (S. D.) 54 N.W. 809. Section 4926, Comp. Laws, provides that In the complaint the judgment was pleaded according to the terms of this section. The answer denied the allegation, so the plaintiff on the trial was bound to show the jurisdiction of the county court to render the judgment. The evidence offered consisted of papers purporting to be the "files in the suit," which were "the complaint, answer, judgment, and stipulation;" and these papers, it is alleged in the abstract and admitted, "constitute the whole of the files in said action." It may be suggested, in explanation, that the stipulation referred to is a stipulation by defendant that judgment may be entered against him for the amount claimed in the complaint. This evidence was objected to on the ground, among others, that it was insufficient to show the jurisdiction of the county court. It will be noticed that there was no summons in the case. At least, none was shown. And, if essential, none will be presumed, in aid of the jurisdiction of the county court. As to courts of limited or special jurisdiction, it is only after jurisdiction is affirmatively shown that the presumption of the validity and regularity of their proceedings attaches. Black, Judgm. § 282; Cooper v. Sunderland, 3 Iowa, 114; Wilkinson v. Moore, 79 Ind. 397; Henry v. Estes, 127 Mass. 474. The question, then, is, not whether the judgment without a summons was effectual and valid as against Kilroy, who consented to it, but were the papers offered sufficient to prove a judgment as against a stranger to them? for we take it that if the judgment, as proved, would not be good as against Gould, the mortgagee, it would not be a good foundation for this action against the sheriff for not levying upon the goods covered by his mortgage. Kilroy might not have been in position to question a judgment to which he had expressly consented, but in this action Sundback, the sheriff, stands in a different relation to it. As to him, it was not a judgment, and his rights could not be affected by it, as such, until it was proved as a judgment. As to him, it was not a judgment, for the purposes of this action, unless the county court had jurisdiction to render it.
Was a summons, or the proof of one, essential to show jurisdiction? "Civil actions in the courts of this state shall be commenced by the service of a summons." Comp. Laws, § 4892. Respondent claims that the voluntary appearance of Kilroy conferred jurisdiction, and took the place, not only of the service, but of the summons itself, and cites section 4904, Comp. Laws: "A voluntary appearance of a defendant is equivalent to personal service of the summons upon him." It is noticeable, and perhaps significant, that the appearance is to be equivalent to the service, not of a summons, but of the summons. It will be observed that the first several sections of the chapter from which the quotation as to the effect of a voluntary appearance is taken very definitely prescribe...
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