Dillon v. Porter
| Decision Date | 15 January 1887 |
| Citation | 36 Minn. 341,31 N.W. 56 |
| Parties | DILLON AND OTHERS v PORTER AND OTHERS. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
(Syllabus by the Court.)
In an action against four defendants jointly indebted upon a contract, a judgment upon default, entered by the clerk of the district court against the three only of them who alone were served with summons, is not void, but only irregular or erroneous.
The action of the clerk, in such case, is the action of the court. Kipp v. Fullerton, 4 Minn. 473, (Gil. 366;)Reynolds v. La Crosse, etc., Co., 10 Minn. 186, (Gil. 144;)Skillman v. Greenwood, 15 Minn. 102, (Gil. 77.)
Express reference to the judgment in a chattel mortgage executed by the judgment debtors to secure the same, proves notice of the judgment.
Appeal from district court, Redwood county.
On motion to set aside a judgment by default.
Geo. W. Somerville and Chas. C. Willson, for appellants, Dillon and others.
M. M. Madigan and J. M. Thompson, for respondents, Porter and others.
This action was brought against four defendants upon their joint promissory notes. Service was made upon three only, and, they having defaulted, judgment was entered against them alone by the clerk. Gen. St. 1878, c. 66, § 67, enacts that when the action is against two or more defendants jointly indebted upon a contract, and summons is served on one or more, but not on all of them, the plaintiff may proceed against those served, unless the court otherwise directs; and, if he recover judgment, it may be entered against all the defendants thus jointly indebted so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served. Regularly, therefore, judgment in the case at bar should have been entered against the four defendants. But it does not follow that it is void because entered against three only.
The district court has jurisdiction of the case before it both as to parties and subject-matter, and, as a consequence, while its judgment may be improper, unauthorized, erroneous, and reversible upon appeal, (as in many cases cited by respondents,) it is not void. Johnson v. Lough, 22 Minn. 203;Kipp v. Fullerton, 4 Minn. 473, (Gil. 366;) Freem. Judgm. §§ 532, 533.
By repeated decisions of this court, the action of the clerk in entering judgment in cases of this kind is to be taken as the action of the court, and the fact that a particular entry is improper, unauthorized, and erroneous does not render the judgment entered void, any more than if it was entered under the immediate eye and direction of the court itself. Kipp v. Fullerton, supra; Reynolds v. La Crosse, etc., Co., 10 Minn. 186, (Gil. 144;)Skillman v. Greenwood, 15 Minn. 102, (Gil. 77;)Egan v. Sengpiel, 46 Wis. 710;S. C. 1 N. W. Rep. 467;Frankfurth v. Anderson, 61 Wis. 107;S. C. 20 N. W. Rep. 662;White v. Crow, 110 U. S. 188; S. C. 4 Sup. Ct. Rep. 71. A great many cases in which judgments entered by a clerk without direction of the district court have been...
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In re Butler's Estate
...to is knowledge or actual notice, and not formal written notice, is well settled. Wieland v. Shillock, 23 Minn. 227; Dillon v. Porter, 36 Minn. 341, 31 N. W. 56; Lord v. Hawkins, 39 Minn. 73, 38 N. W. 689; Kipp v. Clinger, 97 Minn. 135, 106 N. W. 108. What is now section 8701 subd. 4, as en......
- Dillon v. Porter
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Osterhus v. King Const. Co.
...by whom made. The general principles governing attacks upon default judgments have long been established by this court. In Dillon v. Porter, 36 Minn. 341, 31 N.W. 56, an action was brought against four defendants jointly indebted, and default judgment was entered by the clerk against three ......
- Dillon v. Porter