Braun v. Quinn

Decision Date18 July 1924
Docket Number22832
Citation199 N.W. 828,112 Neb. 485
PartiesWILLIAM BRAUN, APPELLEE, v. THOMAS QUINN ET AL., APPELLANTS
CourtNebraska Supreme Court

APPEAL from the district court for Holt county: ROBERT R. DICKSON JUDGE. Reversed.

REVERSED.

H. M Uttley, for appellants.

J. A Donohoe, contra.

Heard before MORRISSEY, C. J., DEAN and GOOD, JJ., BLACKLEDGE and REDICK, District Judges.

OPINION

GOOD, J.

This is an action to enjoin the enforcement of a judgment, on the ground that it is void for want of jurisdiction in the court wherein it was rendered. To the petition the defendants demurred generally and also on the ground of misjoinder of causes of action. The demurrer was overruled, and, defendants electing not to further plead, decree was entered enjoining the enforcement of the judgment, in accordance with the prayer of the petition. Defendants appeal.

The salient facts set forth in the petition are as follows: December 13, 1920, Thomas Quinn commenced an action against William Braun in the district court for Holt county, Nebraska, upon a contract, and prayed for a money judgment. On the same day Quinn filed an affidavit for attachment, setting forth as ground therefor that the defendant Braun had fraudulently incurred the obligation for which suit was brought. On the same day a summons and order of attachment were issued, directed to the sheriff of Holt county. The sheriff made return to the summons that the defendant could not be found in his county, but levied the order of attachment upon real estate of the defendant Braun. On the 28th day of December, 1920, an alias summons was issued out of said court and directed to the sheriff of Platte county, Nebraska, which was served upon Braun. There was attached to this summons a certificate, giving information that a writ of attachment had been issued in the action and levied upon certain described real estate. Braun made no appearance in that action, and on the 26th day of October, 1921, a default judgment, personal in form, was rendered in favor of the plaintiff Quinn, and the court directed that an order of sale should issue, commanding the sale of the attached real estate, or a sufficient amount thereof to pay the judgment, with costs. Pursuant to this order the sheriff advertised the real estate for sale, and then the present action was brought.

It is alleged in the petition in the instant action that at all the times complained of plaintiff was a resident of Platte county and was not at any of the time a resident of or within Holt county. Plaintiff further alleges that he had been the owner of the real estate levied upon, but had since conveyed the same and was liable to his grantee upon the warranties in his deed of conveyance, and also alleges that he was the owner of other particularly described real estate in Holt county, and that the purported judgment obtained against him was a cloud upon the title to his real estate. Plaintiff prays that the purported judgment be decreed null and void, that proceedings to enforce it be perpetually enjoined, and that his title to all the real estate be quieted against the claims of the defendants.

It is contended that the facts pleaded do not show that the judgment is void, but, at most, merely voidable, and that, even if void, plaintiff may not enjoin its enforcement, because he has not set forth in his petition that he had a valid defense to the cause of action on which it was based.

According to the averments of the petition, which are admitted by the demurrer, when Quinn filed his petition in Holt county, Braun was then a resident of Platte county and at no time since has Braun been a resident of or within Holt county. The action, being for a money judgment only, could not be commenced and maintained except in a county where defendant resided or could be served with process. The law did not authorize the issuance of a summons to Platte county. The service in that county of summons on Braun did not give the court jurisdiction over his person. The judgment subsequently rendered was void for want of jurisdiction. Ayres v. West, 86 Neb. 297, 125 N.W. 583; Fogg v. Ellis, 61 Neb. 829, 86 N.W. 494; Chicago, B. & Q. R. Co. v. Hitchcock County, 60 Neb. 722, 84 N.W. 97; Walker v. Stevens, 52 Neb. 653, 72 N.W. 1038; Mosher v. Huwaldt, 86 Neb. 686, 126 N.W. 143.

Defendant contends that the petition does not state facts sufficient to entitle the plaintiff to the relief demanded, because plaintiff failed to allege that he had a valid or meritorious defense to the cause of action on which the judgment was founded. The plaintiff, on the other hand, contends that, the judgment being void, its enforcement may be enjoined without alleging the existence of a meritorious defense to the cause of action on which it was based. The authorities upon this question are not uniform, and the decisions of our own court are not entirely harmonious.

Plaintiff cites and relies upon Bauer v. Deane, 33 Neb. 487 50 N.W. 431; Cobbey v. Wright, 29 Neb. 274, 45 N.W. 460, and Ayres v. West, supra. In none of these cases is the question raised or discussed as to whether, in an action to enjoin the enforcement of a void judgment, it is necessary to allege the existence of a meritorious defense to a cause of action on which the judgment was founded. For aught that appears, in the case of Ayres v. West, supra, a valid defense may have been alleged. In Bauer v. Deane, supra, the action was by one judgment creditor to enjoin the enforcement of a void judgment by another judgment creditor, and in that action it was disclosed that the plaintiff in the injunction suit had acquired a valid and superior lien, so that, in effect, he showed a meritorious defense to the cause...

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