Blandy v. Modern Box Mfg. Co.

• Decision Date: 03 January 1925
• Citation: Blandy v. Modern Box Mfg. Co., 40 Idaho 356, 232 P. 1095 (Idaho 1925)
• Parties: LOUIS E. BLANDY, Appellant, v. MODERN BOX MANUFACTURING COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

232 P. 1095

40 Idaho 356

LOUIS E. BLANDY, Appellant, v. MODERN BOX MANUFACTURING COMPANY, a Corporation, Respondent

Supreme Court of Idaho

January 3, 1925

RECORD ON APPEAL-JUDGMENT-ROLL-SERVICE AND RETURN-JURISDICTION-RECITAL IN JUDGMENT.

1.Upon a default judgment where the complaint is not answered by any defendant, the findings of fact and conclusions of law are not a part of the judgment-roll, and the fact that the clerk includes them therein and certifies them as a part thereof does not make them such.

2.On appeal from an order mentioned in C. S., sec. 7164, if the appellant wishes this court to consider any papers claimed to have been used on the hearing in the court below, it is his duty to have those papers in some way certified as used on the hearing in the court below.

3.When service has in fact been made, so as to give a court jurisdiction, but the proof thereof is defective, or altogether lacking, the defect may be remedied or the proof supplied after judgment.It is the service, and not the proof thereof, that gives the court jurisdiction.

4.Every presumption and intendment of law is in favor of the regularity of a judgment of a court of general jurisdiction.A return of service of a summons and complaint upon a domestic corporation by service upon the auditor of the county in which the principal place of business of such corporation is located does not contradict or conflict with a recital in the judgment of the defendant having been duly served with process and its default having been duly entered according to law, and does not render the judgment void upon its face.

APPEAL from the District Court of the Eighth Judicial District, for Benewah County.Hon. John M. Flynn, Judge.

Appeal from an order vacating a judgment for the plaintiff and an order vacating appointment of receiver.Reversed.

Orders reversed.Costs awarded to appellant.

Ezra R. Whitla, for Appellant.

In this action the findings of fact are a part of the record in the case.On such a proceeding as this the court will take judicial knowledge of all of the proceedings in determining any question in the case.(Hollenback v. Schnabel,101 Cal. 312, 40 Am. St. 57, 35 P. 872;Haaren v. Mould,144 Iowa 296, 122 N.W. 921, 24 L. R. A., N. S., 404;Stewart v. Rosengren,66 Neb. 445, 92 N.W. 586;White v. Jansen,81 Wash. 435, 142 P. 1140;Slater v. Roche,148 Iowa 413, 126 N.W. 925, 28 L. R. A., N. S., 702;Baca v. Catron,24 N. M. 242, 173 P. 862;Parkes v. Burkhart,101 Wash. 659, 172 P. 908;Searls v. Knopp,5 S.D. 325, 49 Am. St. 873, 58 N.W. 807;Graves v. Kelley, 62 Ind.App. 164, 112 N.E. 899.)

Defendant attempts to escape liability on the ground that the proof of the sheriff's return is technically defective.There is no showing that any right of the defendants has been denied.(C. S., sec. 6728;Harpold v. Doyle,16 Idaho 671, 102 P. 165;McKnight v. Grant,13 Idaho 629, 121 Am. St. 287, 92 P. 989.)

The court acquired jurisdiction when the summons was served.(C. S., sec. 6681.)

Service, not proof, gives jurisdiction.(Lucky Boy M. & M. Co. v. Moore,23 Ariz. 291, 203 P. 556;Von Arx v. Boone,193 F. 612, 113 C. C. A. 480;Ranch v. Werley,152 F. 509;Hibernia Savings & Loan Assn. v. Matthai, 116 Cal. 424, 48 P. 370.)

Proof of service can be made at any time, in any way.( Cunningham v. Spokane Hydraulic Min. Co.,20 Wash. 450, 72 Am. St. 113, 55 P. 756;Frisk v. Reigelman,75 Wis. 499, 17 Am. St. 198, 43 N.W. 1117, 44 N.W. 766;Burr v. Seymour,43 Minn. 401, 19 Am. St. 245, 45 N.W. 715;Seeley v. Taylor,17 Colo. 70, 28 P. 461, 463;Herman v. Santee,103 Cal. 519, 42 Am. St. 145, 37 P. 509;Paulin v. Sparrow,91 Ohio St. 279, 110 N.E. 528.)

Service on the county auditor under C. S., sec. 6667, is good.( Brooks v. Orchard Land Co.,21 Idaho 212, 121 P. 101.)

The fact of service may be made to appear in any way and it will be sufficient.(Farrel v. Oregon Gold Min. Co.,31 Ore. 463, 49 P. 876;Jones v. Gunn,149 Cal. 687, 87 P. 577;Spaulding & Co. v. Chapin,37 Cal.App. 573, 174 P. 334;Morrissey v. Gray,160 Cal. 390, 117 P. 438;Hahn v. Kelly,34 Cal. 391, 94 Am. Dec. 742;Northwestern & P. Hypotheek Bank v. Ridpath, 29 Wash. 687, 70 P. 139.)

On a direct attack the recitals of a judgment are presumptive and until the party attacking the judgment overcomes this presumption the recitals are conclusive.(Whitney v. Daggett,108 Cal. 232, 41 P. 471;People v. Harrison,84 Cal. 607, 24 P. 311;Monk v. Horne,38 Miss. 242, 75 Am. Dec. 94;City of Ballard v. Way,34 Wash. 116, 101 Am. St. 993, 74 P. 1067;White v. White,66 W.Va. 79, 135 Am. St. 1013, 66 S.E. 2, 24 L. R. A., N. S., 1279;Toliver v. Morgan,75 Iowa 619, 34 N.W. 858;Ladd v. Higley,5 Ore. 296;People v. Davis,143 Cal. 673, 77 P. 651;Pettis v. Johnston,78 Okla. 277, 190 P. 681;Ollis v. Orr,6 Idaho 474, 56 P. 162;15 R. C. L., pars. 358-369;McKibben v. McKibben,139 Cal. 448, 73 P. 143;Secrist v. Green, 3 Wall. (U.S.) 744, 18 L.Ed. 153.)

R. H. Elder, for Respondent.

Appellant has included in the transcript findings of facts and conclusions of law which are not a part of the judgment roll.(C. S., sec. 4456;O'Neil v. Potvin,13 Idaho 725, 93 P. 20, 257;Nixon v. Tongren,33 Idaho 287, 193 P. 731.)

In default cases if the judgment-roll does not show service the judgment is void.(Vermont Loan & Trust Co. v. McGregor,5 Idaho 510, 51 P. 104;Black on Judgments, sec. 232;Applington v. G. V. B. Min. Co.,6 Idaho 216, 55 P. 241;Nixon v. Tongren,33 Idaho 287, 193 P. 731;Miller v. Prout,33 Idaho 709, 197 P. 1023.)

A judgment void on its face is one that appears to be void by an inspection of the judgment-roll.(Latta v. Tutton,122 Cal. 279, 68 Am. St. 30, 54 P. 844;People v. Harrison,84 Cal. 607, 24 P. 311;Jacks v. Baldez,97 Cal. 91, 31 P. 899;Whitney v. Daggett, 108 Cal. 232, 41 P. 471.)

When it appears on the face of the judgment-roll that the court did not have jurisdiction the judgment is void.(Evans v. Oregon Short Line R. R.,51 Mont. 107, 149 P. 715;Hoitt v. Skinner,99 Iowa 360, 68 N.W. 788;Dean v. Dean, (Tex. Civ.), 165 S.W. 90.)

A recital in a judgment or a decree that service of process has been had on the defendant must be read in connection with that part of the record which gives the official evidence of the service of process, the officer's return, and if the writ with the officer's return shows a defective or improper service of process this will prevail over the recital in the judgment or decree.(Settlemier v. Sullivan,97 U.S. 444, 24 L.Ed. 1110;Munson v. Pawnee Cattle Co.,53 Colo. 337, 126 P. 275;Morse v. United States,29 App. D. C. 433;Hobby v. Bunch,83 Ga. 1, 20 Am. St. 301, 10 S.E. 113;Spring Creek Drainage Dist. v. Highway Commrs.,238 Ill. 521, 87 N.E. 394;Schaller & Son v. Marker,136 Iowa 575, 114 N.W. 43;Davis v. Montgomery,205 Mo. 271, 103 S.W. 979;Kunzi v. Hickman,243 Mo. 103, 147 S.W. 1002;Point Pleasant v. Greenlee & Harden,63 W.Va. 207, 129 Am. St. 971, 60 S.E. 601;Duval v. Johnson, 90 Neb. 503, Ann. Cas. 1913B, 26, 133 N.W. 1125.)

TAYLOR, District Judge.McCarthy, C. J., and Budge, J., concur.WM.E. LEE, J., William A. Lee, J., Dissenting.

OPINION

TAYLOR, District Judge.

--Appellant recovered judgment against respondent, an Idaho corporation, on May 11, 1918; thereafter E. H. Berg was appointed receiver.These proceedings were before Hon. R. N. Dunn, then the presiding judge of the eighth judicial district.On February 28, 1923, two motions were made by counsel for the respondent, one to set aside the judgment, the other to vacate and set aside the order appointing receiver.In the motion to set aside the judgment, the following reasons were recited:

"1.That from the judgment-roll in said cause it may and can be determined that said judgment is void and of no force or effect.

"2.That no service of summons was made in the above-entitled cause upon the defendant, Modern Box Manufacturing Company," with a statement, "that this motion will be made upon the judgment-roll in said action."

The motion to set aside the appointment of a receiver recites the following reasons:

"1.That the application for the appointment of a receiver was not served upon the defendant.

"2.That the judgment under which said receiver was appointed was void and of no force or effect.

"3.That the court had no jurisdiction to appoint a receiver.

"4.That the court had no jurisdiction or authority to appoint Edward H. Berg as receiver."

And that it would "be made upon the application for the appointment of a receiver, the order appointing the receiver, the judgment-roll and the records and files of the above entitled cause."

Both motions were granted, separate orders made, one vacating the judgment, "on the ground that said judgment was and is void," the other reciting that, "having heretofore ordered that the judgment in the above-entitled action be set aside, vacated and held for naught on the ground that the same was and is void.

"It is now ordered, that the aforesaid order appointing a receiver in the above-entitled action be and the same is hereby vacated, set aside and held for naught on the ground that the judgment in the above-entitled action was and is void, and that the court had no jurisdiction to appoint a receiver in the said action, because said judgment was and is void.

"The court finds that the grounds stated in said motion that the application for the appointment of a receiver was not served upon the defendant and that the court had no jurisdiction or authority to appoint Edward H. Berg as receiver are not well taken, and it does not base this order on either of said two last-mentioned grounds."

This appeal is from each of those orders.We are first met...