Choate v. Spencer

• Court: Montana Supreme Court
• Writing for the Court: PEMBERTON, C.J.
• Citation: Choate v. Spencer, 13 Mont. 127, 32 P. 651 (Mont. 1893)
• Decision Date: 20 March 1893
• Parties: CHOATE v. SPENCER et al.

32 P. 651

13 Mont. 127

CHOATE v. SPENCER et al.

Supreme Court of Montana

March 20, 1893

Appeal from district court, Meager county; Frank Henry, Judge.

Action by George R. Choate against Almon Spencer and others, to quiet the title to certain real estate. From a judgment for defendants, plaintiff appeals. Reversed.

Thompson & Maddox, for appellant.

F. N. & S. H. McIntire, for respondents.

PEMBERTON C.J.

This is a suit to quiet title to certain mining property, situated in Meaghercounty, and described in the complaint. The appellant who was plaintiff below, alleges in his complaint that on the 16th day of July, 1888, he was, and is now, seized and possessed of an estate of inheritance in and to the mining claim described therein; that the respondents, who were defendants below, are tenant in common with him in and to said property, but dispute appellant's title to the same that on the 17th day of July, 1888, the appellant was indebted to one Jere Sullivan in the sum of $208.32; that on said last-mentioned day the said Sullivan commenced suit against him to recover judgment for such indebtedness in the district court of the then fourth judicial district of the territory of Montana, in and for Choteau county, and that on said last-mentioned day the said Sullivan procured to be issued, under the hand of the clerk of said court, a certain paper, purporting to require this appellant to appear and answer said complaint; that said paper or pretended summons did not contain or bear in any place or part thereof the seal of said district court, but, on the contrary, bore the impression of the seal of the probate court of said Choteau county; that on the 21st day of July, 1888, there was served upon the appellant a copy of said pretended summons in Meager county, in the territory of Montana, without the seal of said district court; that no summons issued out of said district court, and authenticated by the seal of said court was ever served on the appellant; that appellant never appeared in said court at any time to answer said complaint; that said pretended summons, so served upon the appellant, was returned and filed with the clerk of said court on the 25th day of July, 1888; that thereafter, on the 5th day of November, 1888, the default of the appellant was entered in said court, and final judgment entered in said court against the appellant in said cause; that said pretended summons was the only means by which said court ever attempted to acquire jurisdiction of said appellant; and, as such, was the only basis for the judgment entered in said court against appellant in said cause: that on the 4th day of June, 1889, an execution issued out of said district court upon said pretended judgment, directed to the sheriff of Meager county, who levied the same on the property of the appellant, (described in the complaint herein,) and on the 5th day of July, 1889, said sheriff sold said property to satisfy said pretended execution; that Timothy E. Collins et al. Purchased said property at said pretended sale, that thereafter said Collins and others transferred their certificate of purchase of said property to the respondents, and that on the 13th day of January. 1890, the said sheriff executed and delivered a sheriff's deed to said property to the respondents, which deed was duly recorded in the office of the recorder of said county of Meager; that said property was sold for the sum of $722.86, but was of a much greater value, to wit, of the value of $30,000; that said prespondents, at tlie time of receiving the certificate of purchase and the deed to said property, were well acquainted with the defects and infirmities of the said pretended summons and judgment issued and rendered in said district court upon and against the appellant, and purchased the same with full knowledge of all the defects in relation thereto; that said respondents claim title in fee to the mining ground mentioned in the complaint, under and by virtue of said certificate of purchase and sheriff's deed thereto; and that said deed is a cloud upon the title of appellant, to the injury and damage of appellant in the free use and enjoyment thereof. Appellant asks that said deed be declared void, and that it be canceled. To this complaint the respondents filed a general demurrer, which was sustained by the court, and judgment was rendered for the respondents for costs. From this judgment the appellant prosecutes this appeal.

The appellant insists that the summons issued out of the district court of the fourth judicial district of the territory of Montana, in and for Choteau county, on the 17th day of June, 1888, in the suit of Jere Sullivan against this appellant, was absolutely void, because it was not authenticated by the seal of said court. If this contention is correct, the district court never acquired jurisdiction of this appellant, who was defendant in that suit, by the issuance and service of such summons; and any judgment said court may have entered in said cause, as well as the execution issued for the enforcement of such judgment, and all other proceedings thereunder, including the levy thereof on the property of appellant, and the sale and execution and delivery of the sheriff's deed complained of, would necessarily be null and void. The complaint states that the said summons bore the impress of the seal of the probate court of Choteau county, instead of the seal of the district court, at the time of its issuance and service. For the purposes of this case we shall treat the summons as having been issued without a seal.

At common law, a writ issuing from a court having a seal, in order to be considered authentic or of any value, must be attested by the seal of the court from which it is issued. The laws of this state provide that the district courts shall have a seal, (section 527, Code Civil Proc.,) and that the clerk of the court shall keep the seal, (section 528 Id.) And section 68, Id., requires that the summons must be issued under the seal of the court. So that, under our statutes, there is no departure from the common law rule requiring such writs to be authenticated by the seal of the court from which they issue. The appellant has cited a number of authorities holding the common-law doctrine that such writs must be authenticated by the seal of the court from which they are issued in order to give them validity, and without which they would be void. The principal case relied upon by appellant in support of his contention that the summons under discussion was void for want of the seal of the court is Insurance Co. v. Hallock, 6 Wall. 556. This case...