Bank of Chadron v. Anderson
| Decision Date | 25 March 1897 |
| Citation | 48 P. 197,6 Wyo. 518 |
| Parties | BANK OF CHADRON v. ANDERSON |
| Court | Wyoming Supreme Court |
Rehearing Denied, July 7, 1897, Reported at: 6 Wyo. 518 at 536.
ERROR to the District Court for Weston County, HON. W. S. METZ Judge.
Proceedings for the vacation of a judgment. The bank of Chadron brought suit in the district court for Weston County against Martin C. Anderson upon a certain judgment rendered by the county court of Dawes County, Nebraska. Judgment was entered for the bank, and after the term Anderson instituted proceedings under the statute for the vacation of the judgment on the ground of fraud. The district court ordered the judgment vacated and the original action placed upon the docket of the next term for trial. The bank prosecuted error. The material facts are stated in the opinion.
Judgment affirmed.
Allen G. Fisher, for plaintiff in error.
There was a failure to comply with the statute concerning the calling of a special term of court. The term was not called upon petition by the county commissioners. The constructive service was not good because the notice published referred to the petition, and the only one filed was an amended petition. No proof of publication was filed.
The judgment of the Nebraska Court can not be inquired into. The courts of Wyoming must give "full faith and credit" to the judicial proceedings of every other State; and they can not pass upon any irregularity or even fraud perpetrated in the County Court of Nebraska. (2 Black on Judgments, Secs 860, 918, 919, 921; Carpenter v. Dexter, 8 Wall., 513; Ritter v. Hoffman, 35 Kan. 215; Hanley v. Donoghue, 116 U.S. 1.)
N. K. Griggs and E. E. Lonabaugh, for defendant in Error.
It must be assumed, in the absence of proof to the contrary, that all steps necessary to the holding of the special term of court were taken, the law always presuming when an official act is shown to be done, but which could not be done without some prior act, that the prior act had been done. The objection to the notice published to obtain constructive service is purely technical. The word "amended" is mere surplusage, and the clerical error should be disregarded. (R. S., Sec. 2502.) This question was not raised on the trial, but defendant answered, and went to trial upon the merits. This act constituted a general appearance. (Scarborough v. Myrick (Neb.), 66 N.W. 868; Handy v. Ins. Co., 37 O. St., 366.) When a defendant appears and files his motion to dismiss the suit because of defects in the service by publication, he thereby waives all irregularities and defects in such service. (Welsh v. Ayres, 43 Neb. 326; Ragan v. Morrill, 43 id., 361.) If objections to the jurisdiction had been properly made and overruled, the party making the same must not further appear if he desires to rely thereon. By afterward answering he waives the jurisdictional questions. A judgment of another State may be impeached for want of jurisdiction, or for fraud in its procurement. This right does not violate the Federal Constitution. (Cole v. Cunningham, 133 U.S. 107; White v. Reid, 24 N.Y.S. 290; Conway v. Ellison, 14 Ark. 360; Freeman on Judg., 591; Royal Arc. v. Carley, 29 A. 813; Reynolds v. Fleming, 30 Kan. 103; Cleveland v. Hopkins, 55 Wis. 387; Delancy v. Brownell, 4 Johns., 136; Ward v. Quinlivin, 57 Mo. 425; Eaton v. Hasty, 6 Neb., 419; Schoomaker v. Albertson, 51 Conn. 387; Huntington v. Finch, 3 O. St., 445; Downing v. Still, 43 Mo. 309; Pierce v. Olney, 20 Conn. 544; Rogan v. Walker, 1 Wis. 631; Thomas v. Morris, 30 P. 546 (Utah).) Defenses on the ground of fraud are admissible in code States, fraud having always been successfully set up in equity as a ground for restraining proceedings on the judgment of a sister State. Negligence, mistake, sickness, or erroneous advice of attorney will authorize the setting aside of a judgment obtained by default. (Rogan v. Walker, 1 Wis. 631; Finch v. Malcolm, 30 P. 835; Thomas v. Morris, 8 Utah 284; Baxter v. Chute, 52 N.W. 379; Douglas v. Todd, 31 P. 623; Briston v. Galvin, 62 Ind. 382.)
On the 30th day of March, 1895, Martin C. Anderson filed his petition in the District Court of Weston County seeking the vacation of a judgment recovered by the bank of Chadron against him on the 4th day of April, 1894, in said court in a certain suit wherein said bank was plaintiff, and said Anderson was the defendant. The ground of such application was misconduct and fraud of the prevailing party in obtaining said judgment. The facts relied on to establish such misconduct and fraud are set out in detail in said petition; and, in general, the charges are that the counsel for the bank entered into a conspiracy with the attorney who had been employed by Anderson to represent him in said action whereby the latter's said attorney agreed to allow judgment to go against him by consent, and that the judgment complained of was so entered without the consent in fact of Anderson and without his knowledge. The petition also alleges certain facts upon which it is claimed that there existed a valid and meritorious defense to the action. An answer was filed, amendments to petition, supplemental petition and reply, and upon the trial, without a jury, the court found that the plaintiff Anderson had a good and valid defense to said action, that the judgment was procured by said bank in a much greater sum than was due by imposition through its attorneys both on the court and the defendant therein, and that said judgment was procured by undue means on the part of the bank against Anderson. It was thereupon ordered that said judgment be vacated and set aside, and that the action wherein it had been rendered be placed upon the trial docket of said court, and stand for trial at the next regular term.
Plaintiff in error complains of this judgment, and at the outset attacks the jurisdiction of the court on two grounds. The first proposition contended for in that connection relates to the legality of the session of court at which the cause was tried and judgment entered. It appears that the trial occurred at a special term of the district court in Weston County; and it is urged that the requirements of the statute concerning the calling of special terms were not complied with. Counsel state in their brief that the term was not called upon any petition therefor by the county commissioners. The statute (Sec. 843 Revised Stat. 1887) provides that it shall be competent for the district court, upon the written request of a majority of the board of county commissioners, of the proper county, at any regular term thereof, or any judge in vacation, to order a special term, by giving thirty days' notice in some newspaper published in the county, if there be one; if not, then in some newspaper of general circulation in such county, and that where such notice shall be given the court shall have the same powers as the court at a general term.
All that the record in this case discloses with respect to this matter is that at the regular October, A. D. 1895, term of said court, on the 29th day of October, 1895, an order was entered of record for a special term of said court to be held at Newcastle, Weston County, Wyoming, on the 2d day of December, A. D., 1895. Whether the order was made at the request of a majority of the board of county commissioners, or whether the notice thereof was published as provided in Sec. 843, supra, is not shown. The particular objection now urged does not appear to have been made at the time of trial. The bill of exceptions states that upon the 2d day of December the cause was set down for trial on the 3d day of December over defendant's objections; and that at the time of trial defendant objected to the introduction of any testimony, because said court did not have jurisdiction over the subject matter, nor of the person of the defendant, and that the petition does not state a cause of action, which objection was overruled, and an exception preserved. Defendant offered no proof, and nothing is incorporated in the record of this case to negative a request by the commissioners, or the publication of notice. The record before us does not indicate that it contains all the recitals of record, or all files in the court below concerning the calling of such special term. So far as the matter is at all disclosed by the present transcript, the record and files of the district court may clearly and fully show that such request of the commissioners was made, and that the notice was published. The court ordered the special term. Such term was held at the time appointed, and nothing appearing to the contrary, said court being one of superior and general jurisdiction, we must assume that all acts necessary to be done antecedent to the holding of said special term were done.
It is further contended that the court did not acquire jurisdiction of the person of the defendant, and several of the assignments of error are devoted to this objection; the particular grounds urged being that there was no petition filed as basis for service by publication; that the affidavit for...
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