Bernhard v. Idaho Bank & Trust Co.

• Citation: 123 P. 481,21 Idaho 598
• Parties: C. BERNHARD, Appellant, v. IDAHO BANK & TRUST CO., a Corporation, Respondent
• Decision Date: 02 April 1912
• Court: United States State Supreme Court of Idaho

123 P. 481

21 Idaho 598

C. BERNHARD, Appellant, v. IDAHO BANK & TRUST CO., a Corporation, Respondent

Supreme Court of Idaho

April 2, 1912

JURISDICTION-SETTING ASIDE JUDGMENT-MOTION IN ORIGINAL CASE-SUIT IN EQUITY-MERITORIOUS DEFENSE.

(Syllabus by the court.)

1. Where the defendant interposes a motion to set aside a judgment, submits the same to the court for determination and the court denies the motion, and no appeal is taken from the order denying the motion, the decision of the court thereon is final and res adjudicata and is a bar to an independent action to cancel or set aside such judgment.

2. The defendant, having selected his remedy and thus had his day in court, cannot thereafter maintain a suit in equity to set aside such judgment, as he had an adequate remedy by motion in the original action and had pursued that remedy.

3. When a party has under the law two remedies and selects and proceeds under one of them, after obtaining a decision thereunder, he cannot abandon that remedy and proceed under the other.

4. Where it is claimed that a judgment was rendered without service of summons on the defendant and without his appearance, such defendant has the choice of two methods of attacking such judgment: First, by motion in such action to set aside the judgment; second, by a suit in equity to have the judgment set aside or the collection of the same enjoined.

5. Where a judgment is regular on its face and it is sought by a suit in equity to have it set aside or to enjoin the collection of it, in order to maintain such action the plaintiff must set up a good and meritorious defense to the original action.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. Robert N. Dunn, Judge.

Action to have a judgment set aside on the ground that the trial court had no jurisdiction of the defendant. Judgment for respondent. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

McFarland & McFarland, for Appellant.

It is conceded that where parties come into court asking for the vacation of a judgment upon grounds which rendered the said judgment voidable, and in fact upon any grounds except jurisdictional grounds, an allegation alleging meritorious defense must be set forth. This, however, is not the case where the defects in the judgment were jurisdictional. (23 Cyc. 1031; Crippen v. X. Y. Irrigating Co., 32 Colo 447, 76 P. 794; Wilson v. Hawthorne, 14 Colo. 530 20 Am. St. Rep. 290, 24 P. 548; Great Western Min. Co. v. Alston Min. Co., 12 Colo. 46, 13 Am. St. 204, 20 P. 771; Keely v. East Side Imp. Co., 16 Colo. App. 365, 65 P. 456; Mosher v. McDonald (Iowa), 102 N.W. 837; Arnold v. Hawley, 67 Iowa 313, 25 N.W. 259; Magin v. Pitts, 43 Minn. 80, 19 Am. St. 216, 44 N.W. 675; Harrison v. Lokey, 26 Tex. Civ. App. 404, 63 S.W. 1030; Goldie Const. Co. v. Rich Const. Co., 112 Mo.App. 147, 86 S.W. 588.)

Whitla & Nelson, for Respondent.

The appellant having been properly before the court upon a motion to vacate the judgment, the decision of the court upon this motion is final and binding as to all things which were presented upon that motion, and his decision thereon rendered those matters res judicata. The order made by the court refusing to vacate that judgment was appealable, and until it is appealed from and reversed it stands as a conclusive bar between the parties to this action adjudging absolutely the rights of the parties herein. (McCord v. McCord, 24 Wash. 529, 64 P. 748; Chezum v. Claypool, 22 Wash. 498, 79 Am. St. 955, 61 P. 157; Wilson v. Seattle Drydock etc. Co., 26 Wash. 297, 66 P. 384; Ward v. Derrick, 57 Ark. 500, 22 S.W. 93; Fuller v. Townsley-Myrick Dry Goods Co., 58 Ark. 314, 24 S.W. 635; Texas-Mexican R. Co. v. Wright, 88 Tex. 346, 31 S.W. 613, 31 L. R. A. 200; Holman v. Stowers Furniture Co. (Tex. Civ. App.), 30 S.W. 1120; Crandale v. Bacon, 20 Wis. 640, 91 Am. Dec. 451; School District v. Rice, 11 Idaho 99, 81 P. 155; Benson v. Simmers (Ky.), 53 S.W. 1035.)

Want or insufficiency of process is not ground for equitable relief against a judgment at law, unless the party plead a good and valid and meritorious defense to the action. (Combs v. Hamlin Wizard Oil Co., 58 Ill.App. 123; Gould v. Loughran, 19 Neb. 392, 27 N.W. 397; Newman v. Taylor, 69 Miss. 670, 13 So. 831; White v. Crow, 110 U.S. 183, 4 S.Ct. 71, 28 L.Ed. 113; Eldred v. White, 102 Cal. 600, 36 P. 944; Burbridge v. Rauer, 146 Cal. 21. 79 P. 526; Brandt v. Little, 47 Wash. 194, 91 P. 765, 14 L. R. A., N. S., 213; Gifford v. Morrison, 37 Ohio St. 502, 41 Am. Rep. 537; Farwell Company v. Hilbert, 91 Wis. 437, 65 N.W. 172, 30 L. R. A. 235; 6 Pomeroy's Eq. Jur., sec. 667; Gibbons v. Scott, 15 Cal. 285; Taggart v. Wood, 20 Iowa 236; Knox County v. Harshman, 133 U.S. 152, 10 S.Ct. 257, 33 L.Ed. 586; Petalka v. Fitle, 33 Neb. 756, 51 N.W. 131; Sharp v. Schmidt, 62 Tex. 263.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was brought to have a certain judgment and execution thereon declared void as against the plaintiff, and to have such judgment and execution vacated, annulled and set aside, and for an injunction restraining the collection of such judgment.

It appears from the complaint that on the 22d day of April, 1909, the respondent, a banking corporation, brought an action against the Coeur d' Alene Brewing Company and this appellant, upon certain promissory notes; that in that action the defendants therein appeared by their attorneys and filed a demurrer to the plaintiff's complaint. The demurrer was overruled and the defendants given time in which to answer, which they failed to do, and the court entered judgment against them by default for the sum of $ 17,281.78 and attorneys' fees and costs of suit. It is alleged in the complaint that the summons in said action was never served upon this appellant, and that the appearance in said action made by the attorneys in filing a demurrer was without authority from this appellant; that he did not employ, engage or authorize said attorneys or any attorneys to appear for or represent him in said action; that execution was issued upon said judgment and levied on the property of this appellant, and that he did not know that said action had been instituted or commenced against him until after said execution had been issued; and in the fourteenth paragraph of the complaint it is alleged as follows:

"That on, to wit, the 7th day of June, 1911, this plaintiff entered a special and limited appearance in the above-entitled court in that action for the purpose of moving the court to vacate and set aside said judgment and did at said time and place, upon such special and limited appearance, move the court to vacate and set aside said judgment for the reasons and upon the grounds hereinbefore stated, and that thereafter, to wit, on the 12th day of June, 1911, the said court denied said motion."

From said allegation it appears that the court denied said motion on June 12, 1911, and the complaint in this action was filed two days later, on June 14, 1911. No appeal was taken from the order of the court denying said motion. A demurrer was interposed to said complaint, based on the ground that the complaint does not state facts sufficient to constitute a cause of action, and other grounds. After the hearing, said demurrer was sustained, and in the order sustaining it the court stated as follows: The court "finds that said complaint of plaintiff does not state or show that the plaintiff has any meritorious defense to the action upon which the judgment was recovered against him, and finds that said demurrer should be sustained." The plaintiff refused to plead further and judgment of dismissal was entered. This appeal is from that judgment.

The action of the court in sustaining the demurrer and in dismissing the action is assigned as error. The questions presented are: (1) Was the action of the court in overruling the motion of the appellant to set aside the judgment against him and the brewing company res adjudicata? And (2) Did the court err in this action in sustaining the demurrer on the ground that the appellant had not set up a meritorious defense?

We will dispose of these questions in the order above stated.

1. It is contended by counsel for appellant that as appellant appeared specially only in making the motion in the original case to set aside the judgment on the ground that the court had no jurisdiction of the person of the appellant, the decision of said motion was not res adjudicata and that it still left the matter open for the appellant to maintain this action to enjoin the collection of said judgment. It would appear on that motion the only question presented was whether the court had jurisdiction to enter said judgment. We have a right to and do presume that the question of the appearance of said defendant in that action was fully presented to the trial court on that hearing, and since the motion was overruled, the court must have come to the conclusion that the court had obtained jurisdiction to enter said judgment against the appellant. The authorities seem to be harmonious and in perfect accord in such cases, to the effect that the decision of the court upon the motion to vacate the judgment on the ground that the court did not have jurisdiction to enter it is a settlement of the rights of the parties upon the question of jurisdiction, subject only to an appeal.

In McCord v. McCord, 24 Wash. 529, 64 P. 748, it was held that where a party fails to appeal from an order refusing to set aside a judgment, he has lost his remedy, and said:

"The ruling of the court in this respect was appealable. It is said by this court in Chezum v. Claypool, 22 Wash 498, 79 Am. St. 955, 61 P. 157,...