Bobell v. Wagenaar

• Decision Date: 28 November 1922
• Citation: 210 P. 711,106 Or. 232
• Parties: BOBELL v. WAGENAAR. [*]
• Court: Oregon Supreme Court

210 P. 711

106 Or. 232

BOBELL v. WAGENAAR. ^[*]

Supreme Court of Oregon

November 28, 1922

Department 1.

Appeal from Circuit Court, Lincoln County; G. F. Skipworth, Judge.

Action in ejectment by Henry Bobell against Peter Wagenaar administrator of the estate of Charlie Dennis, deceased. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action in ejectment against the defendant as administrator of the estate of C. H. Dennis, deceased, to recover the possession of certain real property in Lincoln county, Or with damages for withholding the possession thereof.

The complaint alleges that the plaintiff is the owner in fee and entitled to the immediate possession of the property. The answer denies the allegations of the complaint, and alleges that two actions at law were commenced against the plaintiff and prosecuted to judgment; that executions were issued thereon, and the property mentioned in the complaint was sold under said executions; that the sales were confirmed, and that sheriffs' deeds, conveying said premises to defendant's grantors, were executed and delivered, and that by mesne conveyances the title to the premises passed to and became vested in the defendant's intestate.

Harry G. Hoy, of Portland, for appellant.

G. E Hamaker, of Portland (J. F. Shelton, of Portland, on the brief), for respondent.

RAND J. (after stating the facts as above).

Plaintiff's first contention is that the court had no jurisdiction to give judgment against him in either of said actions, for the reason that he was insane at the time, and no guardian had been appointed or appeared for him in either of said actions. This contention cannot be sustained. In both of these actions the relief sought was the recovery of a money judgment only and service of the summons and complaint was made upon the plaintiff herein in person in the county where the actions had been commenced. The court, because of such personal service upon the defendant, had full and complete jurisdiction to hear and determine said actions. If plaintiff, the defendant in said actions, had been theretofore judicially declared to be of unsound mind or incapable of conducting his own affairs, and a guardian had been appointed for him, then the court, because of the provisions of subdivision 4, section 55, Or. L., could not have acquired jurisdiction over his person by service of summons and complaint on him alone, as in such case the statute requires that--

"The summons shall be served by delivering a copy thereof, together with a copy of the complaint * * * to such guardian and to the defendant personally."

In this state there is no statute except the above that prescribes the manner in which service of summons and complaint shall be made upon insane persons, and except where a guardian for an insane person has been appointed as so prescribed, insane persons may be sued and jurisdiction over their persons be acquired by the same process as if they were sane. Hence the court, having acquired full and complete jurisdiction over his person and over the subject-matter of the actions, had authority to render said judgments, whether he was sane or insane at the time the actions were commenced and the judgments rendered. However, when an insane or idiotic person is a party to any action, suit, or proceeding in the courts of this state, section 33--1, Or. L., provides that if he has no guardian, or in the opinion of the court his guardian is an improper or incompetent person, the court shall appoint some suitable person to act as guardian ad litem. But this latter statute has no reference to the manner in which service shall be made upon an insane person, nor does it attempt to limit the court's jurisdiction over the person of such insane party. It only prescribes the procedure to be followed upon the trial of the cause.

The judgments complained of were default judgments, and it was not made to appear to the court that the party defendant to said actions was insane; but, even if it had been disclosed to the court that the defendant was an insane party, and the court had failed or refused to appoint a guardian ad litem to defend for him, this would not have deprived the court of its jurisdiction over his person or over the subject-matter of the action, and such failure would have been a mere irregularity, rendering the judgment voidable, but not void. Plaintiff's remedy in such a case would be to appeal. or to commence a suit to set aside and vacate the judgments. If he had pursued either of these remedies, upon a sufficient showing that he was insane, he could have obtained relief, except that in a suit in equity to set aside or vacate the judgments, it would have been necessary for him to show, not only that he was insane, but also that he had a defense to the actions. In this action, however, the plaintiff cannot raise the question of his insanity, because this is a mere collateral attack upon the judgments and is not a direct attack brought to set aside or vacate the judgments. Hence, if on account of his alleged insanity the plaintiff is entitled to legal relief, he must pursue his remedy by some appropriate action in the original actions or by some direct attack to set aside the judgments. He cannot, in a collateral proceeding, attack either the regularity or validity of these judgments or of the proceedings had in satisfaction thereof.

"As a general rule," said this court in Harper v. Harding, 3 Or. 361, "a judgment or decree of a court having jurisdiction cannot be attacked collaterally; and when a decree is attacked for want of jurisdiction, it is not a sufficient showing of such lack, to declare that the defendant was insane at the time."

See, also, Haines v. West, 101 Tex. 226, 105 S.W. 1118, 130 Am. St. Rep. 839; King v. Robinson, 33 Me. 114, 54 Am. Dec. 614; Maloney v. Dewey, 127 Ill. 395, 19 N.E. 848, 11 Am. St. Rep. 131; Johnson v. Pomeroy, 31 Ohio St. 247; 22 Cyc. 1245; 14 R. C. L., 615. Again, in Tustin v. Gaunt, 4 Or. 309, the court quoted with approval from Grignon v. Astor, 2 How. U. S. 341, 11 L.Ed. 283, as follows:

"A court which is competent, by its constitution, to decide on its own jurisdiction, and to exercise it to a final judgment, without setting forth in their proceedings the facts and evidence on which it is rendered, whose record is absolute verity, not to be impugned by averment, or proof to the contrary, is of the first description; there can be no judicial inspection behind the judgment save by appellate power."

And then said:

"When, however, the record of a court of general jurisdiction comes in question, a want of jurisdiction cannot be shown by evidence aliunde the record, and 'no facts or circumstances which do not appear upon the face of what constitutes the record,' designated in our Code as the judgment roll, can be used for such purpose, for the reason that 'the record of a court of superior jurisdiction imports absolute verity, and cannot, therefore, be collaterally impeached from without.' Hahn v. Kelly, 34 Cal. 402."

The court then defined what constitutes a want of jurisdiction, as follows:

"A want of jurisdiction appears upon the face of the record 'whenever what was done is stated in the record, and which, having been done, is not sufficient in law to give the court jurisdiction.' "

In Morrill v. Morrill, 20 Or. 96, 103, 25 P. 362, 365 (11 L. R. A. 155, 23 Am. St. Rep. 95), this court said:

"It is said to be an axiom of the law, that when a court has jurisdiction of the subject-matter and the parties, its judgments cannot be impeached collaterally for errors of law or irregularity in practice."

In that case the court defined a collateral attack as follows:

"A collateral attack on a judgment is any proceeding which is not instituted for the express purpose of annulling, correcting or modifying such decree. 12 Am. & Eng. Ency. or Law, 177."

We have proceeded thus far upon the theory that the plaintiff herein, the defendant in said actions, was insane, but after a careful examination of the record we find that there is no evidence whatever tending to show that he was insane. The only allegation that plaintiff was insane is contained in the reply, and as all new matter alleged in the reply is deemed denied under the statute, the burden of proof was on the plaintiff. There was some evidence tending to show that during the time referred to he was drinking heavily and was neglecting his business, but this is wholly insufficient to establish insanity. After considering all of the evidence in the case we are satisfied that the plaintiff is not now, and never has been, insane.

Plaintiff contends that because of certain alleged irregularities in the proceedings of the attachment had in the action brought by Allen & Lewis, a corporation, against the plaintiff herein, in which action the real property in question was sold under execution, the sale thereunder was invalid. After the property was sold under execution and the sale thereof was confirmed by order of the court, any irregularity in the attachment at the commencement of the action could not affect the validity of the subsequent sale of the property under execution so far as the rights of the plaintiff in the property are concerned. The Code provides:

"An order confirming a sale shall be a conclusive determination of the regularity of the proceedings concerning such sale, as to all persons, in any other action, suit or proceeding whatever." Section 241, subd. 4, Or. L.

So even if this had been a direct attack the statute would be conclusive upon this question.

Plaintiff also contends that because the return of the sheriff of the sales under execution was filed and orders confirming the sales were made on the same day, the orders of...