Burke v. Interstate Savings & Loan Ass'n

• Decision Date: 06 May 1901
• Citation: 64 P. 879,25 Mont. 315
• Parties: BURKE v. INTERSTATE SAVINGS & LOAN ASS'N.
• Court: Montana Supreme Court

64 P. 879

25 Mont. 315

BURKE v. INTERSTATE SAVINGS & LOAN ASS'N.

Supreme Court of Montana

May 6, 1901

Appeal from district court, Cascade county; J. B. Leslie, Judge.

Action by John Burke against the Interstate Savings & Loan Association for an accounting and to quiet title. From a judgment for defendant, plaintiff appeals. Affirmed.

Stanton & Stanton, for appellant.

J. W Freeman and H. S. Hepner, for respondent.

PIGOTT J.

On July 15, 1892, the plaintiff delivered to the defendant his promissory note of that day, and, to secure its payment executed a mortgage on a lot in Great Falls, Montana. In his complaint he states, in substance, that the note and mortgage have been fully paid and satisfied by him, but that the defendant refuses to surrender the note or satisfy the mortgage, and retains them; that the defendant refuses to account to the plaintiff, or to pay over to him an amount which the plaintiff alleges he has paid to the defendant in excess of the debt; and that the defendant claims an interest in the property mortgaged adverse to the plaintiff, but that such interest, if any there be, is subject to the right and title of the plaintiff. Judgment is prayed for an accounting and that the defendant be required to satisfy and discharge the mortgage and deliver to the plaintiff the note, to quiet the title of plaintiff as against the defendant, and for judgment in his favor for such sum as may be ascertained to be due. The defendant, by answer, denies that the note and mortgage, or either, have or has been paid or satisfied, and pleads that the defendant has been the owner and in possession of the property so mortgaged since the 14th day of September, 1894. The defendant demands judgment that the complaint be dismissed, and the defendant be decreed to be the owner and entitled to the possession of the property as against the plaintiff and those claiming through or under him. The plaintiff, by reply, denies "each and every material allegation in said amended answer contained." There was a trial by jury, whose findings were set aside by the court. Findings were then made by the court, judgment was rendered releasing and discharging the plaintiff from further liability on account of the note and mortgage, and declaring that the defendant has a good and sufficient title to the property, and quieting it in the defendant as against the plaintiff and those asserting any interest acquired by or through him. From the judgment the plaintiff has appealed. Many errors are specified. Some of them are not considered of sufficient importance to require special notice.

1. The defendant suggests that the judgment should be affirmed because the reply is insufficient to raise an issue upon any of the allegations of new matter in the answer. This suggestion is based upon the ground that the plaintiff in his reply denies the "material" allegations of the answer. Such form of attempted denial is bad, for the reason that it is equivalent to saying that the truth of such allegations as the court may decide to be material is controverted; thus rendering it impossible to determine from the reply what is intended to be traversed. Such a denial is at least uncertain. But there was no objection in the court below to the form of the denial, and the cause was tried upon the assumption that the denial was sufficient. Conceding that a reply was necessary to frame an issue upon the new matter in the answer, the objection that might have been interposed to the denial therein contained was waived. Mercantile Co. v. O'Donnell, 24 Mont. 75, 60 P. 991. To hold that the plaintiff, under these circumstances, must be deemed to have admitted the truth of the averments in the answer, would be palpably unjust.

2. To establish its title to the land, the defendant introduced in evidence the judgment roll in a cause entitled "Moritz Conhaim v. John Burke." The roll disclosed that on October 16, 1893, Conhaim caused to be filed in the district court of Cascade county, Mont., his complaint in an action upon a promissory note alleged to have been made by Burke to him, and that on the same day a summons in proper form was issued; that thereafter the summons was returned and filed, together with the proof of service indorsed thereon as follows:

"State of Montana, County of Cascade. J. M. Burlingame, Jr., being duly sworn, says that I received the within summons on the 16th day of October, A. D. 1893, and personally served the same on the 13th day of November, A. D. 1893, upon John Burke, being the defendant named in said summons, by delivering to said defendant, personally, in the said county of Cascade, a copy of said summons. James M. Burlingame, Jr.

"Service, $1.50.

"Subscribed and sworn to before me at Great Falls, Mont., this 13th day of November, 1893. F. B. Wilcox, Notary Public."

The judgment roll further disclosed that the default of Burke was duly entered, and that on November 24, 1893, judgment by default was rendered and entered for the amount of money stated in the complaint and summons; the judgment reciting, among other things, the following: "In this action, the defendant, John Burke, having been regularly served with process, and having failed to appear and answer the plaintiff's complaint filed herein, the legal time for answering having expired, and no answer or demurrer having been filed, the default of the said defendant, John Burke, in the premises having been duly entered according to law, upon application of said plaintiff to the court judgment is hereby entered against said defendant, in pursuance of the prayer of said complaint." The defendant proved that the property mortgaged was sold under an execution issued on the judgment, and that on the 28th day of June, 1894, the sheriff executed his deed conveying the property to one Burlingame, and that Burlingame on September 14th of the same year conveyed the property to the defendant in the present cause. To the introduction of the judgment roll the plaintiff objected upon two grounds: First, because the court which rendered the judgment had no jurisdiction over the subject-matter of the action, for the reason that the complaint did not state facts sufficient to constitute a cause of action, in that it did not allege nonpayment of the promissory note; and, second, because the court had no jurisdiction over the defendant in that action, for the reason that he never appeared, "and the summons therein was not served by an officer or a person over the age of eighteen not a party to the action, and for the further reason that the affidavit constituting the proof of attempted service of summons does not state that the affiant was of the age of eighteen, or any other age, at the time of such attempted service." Plaintiff excepted to the overruling of the objections, and specifies the action of the court in that regard as error.

(a) Disposition is readily made of the objection that the judgment is void because the complaint is insufficient in substance. The action was upon a promissory note made by Burke to Conhaim. After pleading execution of the note, the complaint proceeds: "That the said note is now long past due and unpaid; that payment of the same has been frequently demanded; that plaintiff is now the owner and holder thereof." Conceding that the plaintiff was under the necessity of pleading nonpayment of the note, and assuming that the complaint in that regard was defective, nevertheless there was not a total omission of the material averment, but a mere imperfection of statement, which could have been reached only by special demurrer. This is a sufficient answer to the first objection. We prefer, however, to place our decision upon a broader ground, and, in order to do so, we shall assume that the complaint was lacking in the matter necessary to constitute the statement of any cause of action. The district court of Cascade county, which rendered the judgment in Conhaim against Burke, is a court of record, and of general jurisdiction, both legal and equitable. It has jurisdiction of the class of cases to which Conhaim against Burke belongs. It had jurisdiction, therefore, over the subject-matter of that action. It had authority (that is, power) to grant the relief which it did grant by the judgment, and hence there was no excess of jurisdiction. A judgment which is merely voidable is not open to collateral attack. A void judgment is that which is a judgment in name or form only. Unless void on its face, or upon the inspection of the judgment roll, a judgment cannot be successfully attacked collaterally. Upon collateral attack it matters not that such a court erred in determining any question of law or fact. The judgment is not thereby made void. The irregularity or error may be corrected, or the judgment avoided, on appeal, or on a proper and seasonable application to the court in which the action is pending; but it cannot be set aside or purged of error by any other mode. These principles seem to be self-evident, and the authority of adjudged cases supports them. Altman v. School Dist., 35 Or. 85, 56 P. 291; In re James' Estate, 99 Cal. 374, 33 P. 1122; 1 Freem. Judgm. § 118; 17 Am. & Eng. Enc. Law (2d Ed.) 1069--1072, and cases there cited.

(b) Upon direct attack by appeal, the presumption that the court rendering a judgment by default had jurisdiction of the person of the defendant does not obtain. Unless the record in some way discloses the acquisition of jurisdiction over the defendant, the judgment will be reversed by the appellate court. Schloss v. White, 16 Cal. 65; Connoly v Railroad Co., 29 Ala. 373; 1 Black, Judgm. § 93; 2 Freem. Judgm. § 536. Where a direct attack, other than by appeal, is made upon the judgment of a domestic court of general jurisdiction, the prima...