Baer v. Higson

Citation72 P. 180,26 Utah 78
Decision Date20 April 1903
Docket Number1442
CourtSupreme Court of Utah
PartiesJOHN BAER and MARY BAER, his wife, Respondents, v. HENRY K. HIGSON, E. V. DUNCAN and P. J. CONWAY, Appellants

Appeal from the Third District Court, Salt Lake County.--Hon. W. C Hall, Judge.

Action in equity to quiet title to certain real property; to declare void a certain mortgage covering the same and purporting to have been executed by the plaintiffs to defendant Conway; to set aside all the proceedings had under the mortgage and to enjoin the defendants and each of them from asserting any title or claim to the property. From a judgment in favor of the plaintiffs, the defendants appealed.

REVERSED.

Edward McGurrin, Esq., for appellants.

The respondents had no standing in equity and the trial court erred in overruling the demurrer to the amended complaint and in denying the motion to dismiss the action. The judgment and decree of foreclosure complained of by the respondents was rendered on January 23, 1901, and the summons in that action had not been personally served upon the defendants therein.

Therefore under this provision of section 3005, Revised Statutes 1898 the respondents, at any time prior to January 23, 1892, by motion in the foreclosure suit, could have had the judgment and decree vacated and set aside, and obtained permission to answer to the merits.

Such a remedy not only was plain, speedy and adequate, but during the period allowed in which the motion could have been made, it was exclusive.

Instead, however, of availing themselves of the remedy thus provided, the respondents instituted this, a separate and distinct action, addressed to the inherent equity powers of the court, and sought relief against a judgment and decree previously rendered, when such relief could have been as well obtained by a mere motion made in the original action. This provision of the statute was taken from California (Cal. C. Civ. P., sec. 473), and its force and effect has been passed upon in several instances by the Supreme Court of that State. Ede v. Hazen, 61 Cal. 360; Imlay v. Carpenter, 14 Cal. 173; Bibend v. Kruetz, 20 Cal. 109; Logan v. Hillegass, 16 Cal. 201; Hintrager v. Sumbargo, 54 Iowa 604; Simpson v. Hart, 14 Johns. 63; Wilgensen v. Rewey, 59 Wis. 554; Bowers v. Tallmadge, 16 How. Pr. 325; Furnald v. Glenn (C. C.), 56 F. 372; Reed v. Prescott, 70 N.H. 88, 46 A. 457; Smith v. Kemmerer, 152 Pa. 98, 25 A. 165; Brown v. Chapman, 90 Vt. 174, 17 S.E. 855; Morrison v. Speer, 10 Grat. (Va.) 228; Howell v. Thomansen, 34 W.Va. 794, 12 S.E. 1088; Henderson v. Moore, 125 N.C. 383, 34 S.E. 446; Crocker v. Allen, 34 S.C. 452, 13 S.E. 650; Hart v. Lazaron, 46 Ga. 396; Roebling v. Stevens Elec. Co., 93 Ala. 39, 9 So. 369; Hulett v. Hamilton, 60 Minn. 21, 61 N.W. 672; Hockaday v. Jones, 8 Okla. 156, 56 P. 1054.

In addition to the foregoing citations, the attention of the court is directed to the following: 1 Spelling, Injunction and Ext. Rem., sec. 89; Freeman on Judg., sec. 497; Ratcliff v. Stretch, 130 Ind. 282; Mayo v. Bryte, 47 Cal. 626; Green v. Thomas, 17 Cal. 86; Sullivan v. Shell, 36 S.C. 578; 16 Am. and Eng. Ency. (2 Ed.), pp. 387-354; Pom. Eq. Jur., sec. 1361.

The evidence does not support the finding of the trial court to the effect that the failure of the respondents to appear in and defend the foreclosure proceedings was owing to excusable neglect. It has been said by this court that whether the neglect of a party to appear and defend an action brought against him is excusable or not, depends upon the peculiar facts and circumstances connected with each particular case. Bank v. Trumbo, 17 Utah 198.

The sale had pursuant to the decree of foreclosure was a judicial one, and hence the interest acquired by Duncan, the purchaser, could not be divested by the subsequent vacation and annulment of the judgment and decree. The judgment of the lower court not only vacated the decree of foreclosure, but adjudged that Duncan, the purchaser and the holder of the certificate of sale issued by the sheriff, had no interest in the premises. This was error. The decree of foreclosure directed that specific property be sold, and a sale had pursuant to such a decree is a "judicial" sale. 17 Am. and Eng. Ency. (2 Ed.), p. 954; Freeman on Jud. Sales, sec. 1; Studevant v. Norris, 30 Iowa 65; Hart v. Stull, 4 Md. Ch. 391; R. R. Co. v. Gay, 86 Tex. 571.

"The setting aside of a judgment will not affect the title to property which was the subject of the judgment or is affected by it, if it has passed to a purchaser in good faith, relying on the judgment." Citizens' State Bank v. Hogmer et al. (Neb.), 76 N.W. 867; Security Abstract Co. v. Longacre, 76 N.W. 1073; Black on Judg. (2 Ed.), sec. 355.

C. S. Price, Esq., and Wm. M. McCrea, Esq., for respondents.

BARTCH, J. BASKIN, C. J., and McCARTY, J., concur.

OPINION

BARTCH, J.

--This is an action in equity to quiet title to certain real property; to declare void a certain mortgage covering the property, and purporting to have been executed by the plaintiffs to defendant Conway; to set aside all the proceedings had under the mortgage, including a judgment and decree rendered in favor of defendant Higson in a foreclosure suit, where the mortgage was foreclosed and the property sold; and to enjoin the defendants, and each of them, from asserting any title or claim to the property, and from taking any further proceeding in respect to it by virtue of the decree of foreclosure. It appears from the record that the foreclosure suit was instituted on November 2, 1900, and service of summons made by publication, the defendants therein (plaintiffs herein) then being non-residents and temporarily in Germany; that copies of the complaint and summons were mailed to them in Germany, which they received early in December, and the receipt of which was acknowledged by the defendant Baer in that action on December 8, 1900; that he wrote to attorneys here, but gave no instructions to represent him or his wife in the foreclosure suit; that their default was entered and judgment of foreclosure decreed on January 23, 1901; that on February 19, 1901, the premises were regularly sold under the judgment to defendant Duncan, who was an innocent purchaser, and a certificate of sale issued to him; and that the plaintiffs herein claim that the mortgage was forged. They returned from Germany and came to Salt Lake City in May, 1901. On August 19, 1901, they instituted this suit. The defendants filed a demurrer to the complaint on the ground that it did not state a cause of action. This was overruled, and upon trial of the cause a decree as prayed for was entered in favor of the plaintiffs.

The decisive question presented is, are they entitled to any relief in this action? We think not. Any relief to which they might have been entitled they could have obtained in the foreclosure suit, wherein they were parties defendant, had they used due diligence. They had actual notice of the pendency of that suit, but put in no appearance, made no defense, suffered a default to be entered against them, and a judgment of foreclosure to be rendered, and, without objection, a sale of the property in dispute to be made to an innocent purchaser, who, so far as shown by the record, had no notice of their claim that the mortgage was a forgery. They have shown no excuse worthy of consideration for such negligence. Even after they came to Utah within the jurisdiction of the court, they, previous to the filing of this suit in August, made no effort, by motion or otherwise, to set aside the proceedings in the foreclosure suit, so as to be permitted to answer to the merits; and yet all the while they had a plain, speedy, and adequate statutory remedy, by motion in the action in which the judgment they now seek to set aside and enjoin was rendered. In section 3005, Revised Statutes 1898, it is provided: "When, from any cause, the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action." Under this provision of the statute, the plaintiffs, could, upon proper application to the court by motion, have obtained whatever relief they were entitled to at any time within one year from the rendition of the judgment; they not having been personally served with summons in that action. This remedy was still open to them when they filed the present suit, and for about six months thereafter, and was fully as adequate and complete as, and certainly more speedy and less expensive than, an independent action in equity. Under such circumstances such an action is barren of any right to equitable interference. In such case, where parties have a remedy by motion, a separate and distinct suit in equity cannot be...

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3 cases
  • Baldwin v. Anderson, 5653
    • United States
    • Idaho Supreme Court
    • May 2, 1931
    ...Mfg. Co., 116 Cal. 127, 47 P. 1016; Miller v. Owens, 55 Colo. 88, 133 P. 141; Ellis v. Akers, 32 Okla. 96, 121 P. 258; Baer v. Higson, 26 Utah 78, 72 P. 180; Strelau City of Seattle, 85 Wash. 255, 147 P. 1144.) A judgment of a legally organized court is void, or voidable, only when the cour......
  • Intermill v. Nash
    • United States
    • Utah Supreme Court
    • January 13, 1938
    ... ... merely incidentally, the attack is collateral. Cohen ... v. Portland Lodge No. 142, B. P. O. E., 152 ... F. 357, 81 C. C. A. 483; Cohee v. Baer, 134 ... Ind. 375, 32 N.E. 920, 39 Am. St. Rep. 270. An apt ... illustration is found in Combs v. Deaton, ... 199 Ky. 477, 251 S.W. 638, where it ... request was made, and no reason given for the delay or ... failure. Blyth & Fargo Co. v. Swenson, 15 ... Utah 345, 49 P. 1027; Baer v. Higson, 26 ... Utah 78, 72 P. 180; Cutler v. Haycock, 32 ... Utah 354, 90 P. 897; Utah Commercial & Savings Bank ... v. Trumbo, 17 Utah 198, 53 P. 1033 ... ...
  • Munz v. Standard Life & Accident Ins. Co.
    • United States
    • Utah Supreme Court
    • April 20, 1903

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