Dixie Meadows Independence Mines Co. v. Kight

• Citation: 150 Or. 395,45 P.2d 909
• Parties: DIXIE MEADOWS INDEPENDENCE MINES CO. et al. v. KIGHT et al.
• Decision Date: 04 June 1935
• Court: Supreme Court of Oregon

45 P.2d 909

150 Or. 395

DIXIE MEADOWS INDEPENDENCE MINES CO. et al. v. KIGHT et al.

Supreme Court of Oregon

June 4, 1935

In Banc.

Appeal from Circuit Court, Grant County; W. W. Wood, Judge.

Suit by the Dixie Meadows Independent Mines Company and another against George H. Kight and another. From a decree dismissing their suit on plaintiffs' refusal to plead further after a general demurrer was sustained to the amended complaint plaintiffs appeal.

Reversed judgment in former case annulled and set aside, and cause remanded.

Plaintiffs appealed from a decree dismissing their suit upon their refusal to plead further after a general demurrer was sustained to the amended complaint.

On January 14, 1933, defendant George H. Kight commenced a suit in the circuit court of the state of Oregon for Grant county against Dixie Meadows Independence Mines Company, a corporation, to foreclose certain liens for labor performed upon the mining claims, of which it was alleged that defendants were the owners and reputed owners; said mining property being situated in Grant county, Or. Service was had upon all of the defendants by publication, and, on February 21, 1933, a default and decree was entered against all the defendants, in accordance with the prayer of the complaint foreclosing the said liens and directing a sale of the mining property. Execution was issued upon the decree, the property sold on April 1, 1933, and George H. Kight became the purchaser thereof for the amount of his decree. On April 14 1933, the sale was confirmed by the court. On June 19, 1934, this suit was commenced by the Dixie Meadows Independence Mines Company and A. D. Coulter to set aside the decree and sale and to enjoin the sheriff of Grant county, Or., from issuing a sheriff's deed to the property. Thereafter a demurrer was sustained to plaintiffs' amended complaint, and, upon plaintiffs' refusal to further plead, a decree was entered dismissing the complaint.

RAND J., dissenting.

Judgment in suit against mining corporation and president to foreclose lien for labor on mining claims held void for lack of jurisdiction, where service by publication was not in accordance with statute. ORS 15.120, 52.150.

Edgar Freed, of Portland (J. Will Jones, of Seattle, Wash., Simon, Gearin, Humphreys & Freed, of Portland, and Butler & Jack, of Oregon City, on the brief), for appellants.

Blaine Hallock, of Baker (Geo. H. Cattanach, of Canyon City, and Russell Sullens, of Prairie City, on the brief), for respondents.

Plaintiffs assign that the court erred in sustaining the demurrer to plaintiffs' amended complaint and rendering a judgment of dismissal of the suit. Plaintiffs' suit is a direct attack on the decree in the former suit. A suit in equity brought to avoid a decree for want of service is not a collateral attack. Lieblin v. Breyman Leather Co., 82 Or. 22, 160 P. 1167; rill v. Morrill,

20 Or. 96, 25 P. 362, 11 L. R. A. 155, 23 Am. St. Rep. 95; Acton v. Lamberson, 102 Or. 472, 202 P. 421, 732. In the latter case it was held, in effect, that any attack which has for its object the setting aside and vacating of the judgment is a direct attack, whether in the same or an independent proceeding. It is stated in the brief that the trial court dismissed the suit because it was of opinion that it was a collateral attack. See, also, Christensen v. Lane County, 90 Or. 401, 175 P. 845; Gordon v. Adams, 125 Or. 662, 268 P. 60.

It is contended by plaintiffs that no legal service of the summons and complaint was made on either of these plaintiffs in the original suit, and therefore a void order or judgment may be attacked directly at any time and in any proceeding, citing Schmid v. Portland, 83 Or. 583, 163 P. 1159; N. P. T. Co. v. Portland, 14 Or. 24, 13 P. 705; State v. Bayles, 121 Wash. 215, 219, 209 P. 20; 34 C.J. 514.

The trial court held that there was no allegation of fraud in the original case or that plaintiffs were deprived of the right to make a defense therein on account of fraud, accident, excusable mistake, or neglect, nor was any special ground for equitable interference alleged.

It is not necessary to plead a defense to a void judgment where the court had no jurisdiction to render the same. Finch v. Pac. Reduction & Chem. Mfg. Co., 113 Or. 670, 234 P. 296; Lieblin v. Breyman Leather Co., supra; Sakai v. Keeley, 66 Wash. 172, 119 P. 190; 34 C.J. 268. In Hawley v. State Assur. Co., 28 Cal.App. 41, 151 P. 153, 154, it is said, in substance, that a judgment taken against a party without any notice whatsoever is not a judgment taken "through his mistake, inadvertence, surprise, or excusable neglect," and in such case no adequate remedy at law is afforded, and the party may resort to equity to obtain relief within the period fixed by the statute of limitations.

The trial court apparently was of the opinion that these plaintiffs had actual knowledge of the suit against them and that they should have appeared and answered. However, actual knowledge of a suit against a party is not equivalent to statutory notice. The record in the cause must show that proper service has been had. Keane v. City of Portland, supra; Bitting v. Douglas County, 24 Or. 406, 33 P. 981.

It is quite well settled in this state that a suit in equity may be maintained to set aside the final judicial determination reached in another case, where the court had no jurisdiction to render the judgment or decree. Hanley v. Medford, 56 Or. 171, 108 P. 188.

The main question in this case is in regard to the service by publication and mailing of the summons and complaint to the corporation and a copy of the summons to A. D. Coulter, both at Seattle, Wash.

Section 1-505, Oregon Code 1930, subd. 1, as amended by chapter 16, General Laws of 1931, provides that the summons shall be served by delivering a copy thereof together with copy of the complaint duly certified as follows: "1. If the action be against a private corporation, to the president or other head of the corporation, vice-president, secretary, cashier, assistant cashier or managing agent, or, in case none of the officers of the corporation above named shall reside or have an office in the county where the cause of action arose, then to any clerk or agent of such corporation who may reside or be found in the county, or, if no such officer be found, then by leaving a copy thereof at the residence or usual place of abode of such clerk or agent."

Section 1-506, Oregon Code 1930, authorizes service by publication when service of the summons cannot be made, as prescribed in the last preceding section, and the defendant, after due diligence, cannot be found in the state, and when that fact appears by affidavit, to the satisfaction of the court or judge thereof, or judge authorized to grant the order therein provided, and it also appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in this state, then the court or judge thereof, or judge authorized to grant the order, shall grant an order that the service be made by publication of a summons in either of the following cases: "4. When the defendant is a corporation organized under the laws of this state, and has property therein, and the court has jurisdiction of the subject of the suit or action, and all the officers of such corporation are nonresidents of the state, or have removed therefrom, or have departed from the state and have remained absent therefrom six consecutive weeks. ***" The Dixie Meadows Independence Mines Company was organized as a corporation under the laws of Oregon to acquire, own, and operate mining properties and mines in this state, and was wholly so engaged when defendant Kight's cause of action arose. That corporation and Coulter were the owners of the property in question at all times mentioned. This corporation came under the provisions and privileges of section 25-212, Oregon Code 1930. Its officers and a majority of its directors could and did reside outside of the state of Oregon.

Plaintiffs contend that under that statute the defendants could have made valid personal service on the corporation in Oregon by service on the corporation commissioner.

Section 25-212 provides that a majority of the directors of any corporation, incorporated under the laws of this state for the purpose, in whole or in part, of and actually engaged as its principal business, in acquiring, owning, or operating mines, may, while such corporation is so engaged in the business aforesaid as its principal business, and no longer reside out of the state of Oregon, and any such corporation may have offices and officers without said state, and meetings of its directors may be held without the state of Oregon, but at least one director of said corporation shall reside in this state, and every such corporation, if its president does not reside in this state, must at all times maintain in the state and within the county where its principal office and place of business is located an agent upon whom any and all...