Campbell v. Coulston

Decision Date14 January 1910
Citation19 N.D. 645,124 N.W. 689
PartiesCAMPBELL v. COULSTON et al.
CourtNorth Dakota Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

A person who purchases property upon which a judgment, void for want of jurisdiction appearing on its face, is a cloud, is not entitled as a matter of right to have such judgment vacated on motion.

The court in which such motion is made may in the exercise of a sound judicial discretion entertain the same, or it may require the moving party to resort to his remedy by action.

B., having procured a quitclaim deed for a consideration of “one dollar and other valuable consideration” of lands which were sold pursuant to a judgment in foreclosure rendered nearly 22 years prior thereto, moved to vacate such judgment upon the ground that the same is void upon its face on account of defects in the affidavit for the service of the summons by publication.

Held, under the particular facts, for reasons stated in the opinion, that the trial court abused its discretion in entertaining and granting such motion.

Held, further, that the state district court is not the successor of the territorial district court which rendered such judgment for the purpose of inquiring into the merits of such litigation, the action having at the date of the admission of North Dakota into the Union ceased to be pending. Hence such state court had no jurisdiction to vacate such judgment on motion. Bank v. Braithwaite, 7 N. D. 358, 75 N. W. 244, 66 Am. St. Rep. 653, distinguished.

Appeal from District Court, Burleigh County; Winchester, Judge.

Action by Hugh Campbell, Jr., against J. Warren Coulston to foreclose a mortgage. From an order vacating a judgment of foreclosure on motion of Joseph W. Bull, plaintiff appeals. Reversed.

Morgan, C. J., and Spalding J., dissenting.F. H. Register, John W. Noble, S. E. Ellsworth, and Guy C. H. Corliss, for appellant. J. W. Bull (R. N. Stevens, of counsel), for respondent.

FISK, J.

This is an appeal from an order of the district court of Burleigh county dated September 28, 1907, vacating a judgment entered on July 8, 1885, by the territorial district court in said county.

The facts necessary to an understanding of the questions involved are as follows: The judgment thus vacated was rendered in an action claimed to have been commenced by appellant against one Coulston for the foreclosure of a mortgage executed by one Patterson and wife covering 3,040 acres of real property in Burleigh county to secure a note for $5,000; such land having been conveyed subsequent to such mortgage to the said Coulston. On August 10, 1906, Coulston executed, for a stated consideration of “$1.00 and other valuable consideration,” a quitclaim deed of the lands to respondent Bull, who in April, 1907, procured from the judge of the district court of the Sixth judicial district an order requiring appellant to show cause “why the judgment and decree in this action should not be set aside and canceled of record on the ground that the court had no jurisdiction to enter said judgment and decree.” Respondent based his sole right to move for the vacation of such judgment upon the quitclaim deed aforesaid, and he bases his right to such relief upon the sole ground “that the court had no jurisdiction to enter such judgment and decree, which want of jurisdiction appears on the face of said judgment and the judgment roll.” The particular jurisdictional defect relied on was and is alleged insufficiency of the affidavit for an order for publication of the summons in not stating any facts showing that the defendant, after due diligence, could not be found within the jurisdiction of the court.

The only service made on appellant of the order to show cause was by mailing in a registered letter a copy thereof addressed to him at St. Louis, Mo. On May 21, 1907, plaintiff appeared specially before the district court, and moved for the vacation of such order upon the grounds, among others, (2) that the service of the order to show cause was entirely insufficient to give the court issuing the order jurisdiction; (3) that the district court of the Sixth judicial district of the state of North Dakota is not the court in which the action in which the order to show cause was issued, was commenced, or in which the decree which it was sought to vacate was entered, or the legal successor of said court, and that it was without jurisdiction to hear or determine any proceedings affecting the decree; (4) that it does not appear from the moving papers that Bull was a party to said action or the successor in interest of a party or entitled in any manner to move or proceed in said action; * * * (6) that, owing to lapse of time, the judgment in said action was final and could not be disturbed; and that (7) the matters presented by Bull's application could not in any event be properly determined upon a summary application of this character or in any manner other than by civil action.” This motion was denied, whereupon plaintiff filed a return to the order to show cause, in which he set forth at length many facts and reasons why the relief asked by respondent Bull should not be granted. We deem it unnecessary to incorporate such return herein.

It conclusively appears that defendant Coulston was personally served with a copy of the summons and complaint at his home in Philadelphia, Pa., and had ample opportunity, if he desired, to appear and defend the foreclosure suit, but he suffered a default, and at no time during this long period of time has he sought in any manner to question the validity of such decree. That plaintiff possessed a meritorious cause of action is questioned neither by Coulston nor Bull, his grantee. Pursuant to such decree of foreclosure, these lands were struck off at public sale to plaintiff on August 22, 1885, for the sum of $5,433.26, which sale was confirmed by an order of the district court dated September 2, 1885, and on October 11, 1886, a sheriff's deed in due form of the premises aforesaid was executed and delivered to plaintiff by the sheriff of said county, which sheriff's deed was duly recorded on October 13, 1886, ever since which time plaintiff has in good faith claimed to be the owner of said lands and has exercised acts of ownership therein by the payment of taxes and otherwise.

It is thus apparent that respondent Bull stands before this court in the inequitable position of attempting to obtain through a mere technicality, namely, a defect in the affidavit for publication of the summons, and in the light of the strongest possible equities in plaintiff's favor, and at a time nearly 22 years subsequent to the entry of judgment, affirmative equitable relief by motion with the ultimate end in view of obtaining a large and valuable tract of land, which apparently had been abandoned by his grantor, and this without so much as tendering or being required to pay any portion of the mortgage debt, or reimbursing the plaintiff for the taxes paid. A case more destitute of equity cannot well be imagined. It would therefore seem plain that the relief prayed for should not be granted unless the movant has shown a clear, legal right thereto. Is he entitled to such relief as a matter of strict legal right? We think not. Conceding, for the sake of argument, that the judgment is void, the respondent, by his motion to vacate the same, invokes the equitable powers of the court to the same extent as though he had resorted to an action in equity to cancel such judgment as a cloud upon his title, or had brought an action to quiet title or to determine adverse claims. Whether the court would entertain such motion or compel the movant to resort to his remedy by action in equity was discretionary, but, under the particular facts in this case, we hold that it was manifestly an abuse of discretion to permit respondent to proceed by motion instead of by an action. Bull being a stranger to the judgment, but claiming to have purchased defendant's rights in the subject-matter of the action, the court is called upon, as stated by appellant's counsel, “to decide a question of fact having no relation whatever to the question whether the judgment is void.” That question of fact is whether the moving party has as a matter of fact and law secured the title of the defendant to the subject-matter affected by the judgment. This important question of fact has to be tried on affidavits, and, what is more, it may in many instances be tried in the absence of the real party who owns the subject-matter. In the light of these facts, the language of that eminent jurist, Judge Mitchell of the Minnesota Supreme Court, is particularly applicable. We quote: We think that a judgment absolutely void for want of jurisdiction appearing on its face may be set aside on the motion of any person who, although not a party to the action, has an interest in the property upon which it is a cloud. Such a motion is not, strictly speaking, a proceeding in the action, but an application to have the records purged of an unauthorized and illegal entry. Hervey v. Edmunds, 68 N. C. 243;Blodget v. Blodget, 42 How. Prac. [N. Y.] 19;Mills v. Dickson, 6 Rich. Law [S. C.] 487; Milnor v. Milnor, 9 N. J. Law, 93; Hunter v. Stove Co., 31 Minn. 511, 18 N. W. 645. But such a practice is liable to encourage the intermeddling of strangers, and is subject to the possible danger of affecting the rights of parties not before the court, and therefore to be indulged in very cautiously. Moreover, one not a party to the action is not entitled as a matter of right to such relief. The granting of it is a matter wholly within the sound discretion of the court. There is no necessity for granting such relief, for a judgment, void on its face, can neither effect, impair, nor create rights, and is always and everywhere open to collateral attack.” Mueller v. Reimer, 46 Minn. 314, 48 N. W. 1120. To the same effect is the holding in Wisconsin, where, in speaking for the court, Dodge, J., said: ...

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5 cases
  • Campbell v. Coulston
    • United States
    • North Dakota Supreme Court
    • 14 January 1910
  • Peterson v. First & Security State Bank of Crosby
    • United States
    • North Dakota Supreme Court
    • 26 May 1931
    ...15 N.D. 248, 107 N.W. 68; Smith v. Jensen, 16 N.D. 408, 114 N.W. 306; Keller v. Souther, 26 N.D. 358, 144 N.W. 671; Campbell v. Coulston, 19 N.D. 645, 124 N.W. 689. will never be extended to a party against his own contract without exacting from him strict justice to his adversary. Loff v. ......
  • Peterson v. First & Sec. State Bank of Crosby
    • United States
    • North Dakota Supreme Court
    • 26 May 1931
    ...decided by this court, including Tracy et al. v. Wheeler et al., 15 N. D. 248, 107 N. W. 68, 6 L. R. A. (N. S.) 516;Campbell v. Coulston, 19 N. D. 645, 124 N. W. 689;Keller v. Souther, 26 N. D. 358, 144 N. W. 671, L. R. A. 1916B, 1218. In those cases the principle that he who seeks equity m......
  • Warren v. Resaake
    • United States
    • North Dakota Supreme Court
    • 24 April 1926
    ...the court may, in the exercise of sound discretion, require the moving party to resort to his remedy by action. Campbell v. Coulston, 124 N. W. 689, 19 N. D. 645, followed. Appeal from District Court, Mountrail County; Moellring, Judge. Action by J. W. Warren and another against M. Resaake ......
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