Elliott & Healy v. Wirth

• Decision Date: 28 May 1921
• Citation: 34 Idaho 797,198 P. 757
• Court: Idaho Supreme Court
• Parties: ELLIOTT & HEALY, Copartners, Respondents, v. JOHN WIRTH, Appellant

198 P. 757

34 Idaho 797

ELLIOTT & HEALY, Copartners, Respondents, v. JOHN WIRTH, Appellant

Supreme Court of Idaho

May 28, 1921

ALIAS SUMMONS-ORDER-DELAY IN SERVICE-FORMAL DEFECTS-JUDICIAL CONTROL OF PROCESS-SPECIAL APPEARANCE ON NONJURISDICTIONAL GROUNDS - ALLEGED INADEQUACY OF PRICE AT EXECUTION SALE.

1. Where neither an affidavit for service of alias summons outside the state nor the order based thereon contain the words "alias summons," yet both recite that summons had theretofore been issued, returned and filed with the clerk, and the alias summons, affidavit and order were issued, filed and made on the same day and recorded in the register of actions in the order given, in the absence of a contrary showing it must be presumed that such alias summons preceded the order in point of time and was "the summons" to which the affidavit and order refer, and that it was the alias summons ordered to be served upon the defendant outside the state.

2. A court has control over its process, and where proper jurisdictional facts empowering the court to act are established to its satisfaction, such process may be delayed but not defeated by mishaps occurring while in the hands of the person by whom service is to be made. It is within the power of the court to order a lost alias summons to be replaced by another upon being satisfied of such loss.

3. Errors, defects or delays in the service of process which do not affect the substantial rights of the parties should be disregarded.

4. The existence of a verified complaint on file stating a cause of action against a defendant upon whom service is sought to be made is an essential prerequisite to the issuance of an order for personal service of summons outside of the state, under the provisions of C. S., sec. 6677. Where such a complaint was actually on file at the time the order for service of summons was made, the presumption must be that the court so found, and such presumption is not overcome by a recital that a cause of action exists as appears by affidavit, when the affidavit refers to and adopts the complaint.

5. Where a defendant purports to appear specially and moves that a sale under execution be set aside by reason of inadequacy of the sum paid for the property sold, he seeks relief which could be granted only upon the hypothesis that the court has jurisdiction of the cause. Such appearance is accordingly a general appearance and gives the court jurisdiction over him for all purposes of the case.

6. Mere inadequacy of price at which property is sold under execution is not sufficient ground to set aside the sale, where the parties stand on an equal footing and there are no confidential relations between them and no element of fraud unfairness or oppression is shown to have existed with respect to such sale.

7. Where a litigant permits judgment to be taken against him by default he cannot be heard seven months after a sale upon execution in pursuance of such judgment to question the adequacy of the price for which the property in question was sold, in the absence of proof of fraud, unfairness or oppression with respect to the sale, or the existence of a confidential relation between the parties.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Chas. P. McCarthy, Judge.

Action for attorney fees. Judgment for plaintiffs by default. Motion to quash the summons, vacate default and set aside judgment and sale under execution, denied. Affirmed.

Order affirmed. Costs awarded to respondents.

Wyman &amp Wyman, for Appellant.

The order for service of summons outside the state must be based upon an affidavit made within a reasonable time prior to the granting of the order. (Forbes v. Hyde, 31 Cal 342; Cohn v. Kember, 47 Cal. 144; Bank of Venice v. Hutchinson, 19 Cal.App. 219, 125 P. 252; New York Baptist Union v. Atwell, 95 Mich. 239, 54 N.W. 760; Campbell v. McCahan, 41 Ill. 45; Roosevelt v. Land &amp River Co., 108 Wis. 653, 84 N.W. 157.)

A similar rule prevails as to the affidavit for attachment. ( Murphy, Grant & Co. v. Zaspel, 11 Idaho 145, 81 P. 301.)

The existence of a cause of action in favor of plaintiff is a jurisdictional fact that must be shown in the manner required by statute. (Lima v. Lima, 26 Cal.App. 1, 147 P. 233; Columbia Screw Co. v. Warner Lock Co., 138 Cal. 445, 71 P. 498; County of Yolo v. Knight, 70 Cal. 430, 11 P. 662.)

Where an attorney obtains a judgment against his client for legal services, while holding in his possession property of the client, and thereupon proceeds to sell such property at execution sale and buys the same for $ 50, while the property is admittedly worth more than $ 750, the sale should be set aside. (24 Cyc. 39; In re Burr Mfg. & Supply Co., 217 F. 16, 133 C. C. A. 126; Morton v. Wade, 175 Ky. 564, 194 S.W. 802; Roger v. Whitham, 56 Wash. 190, 134 Am. St. 1105, 21 Ann. Cas. 272, 105 P. 628; Las Vegas R. & P. Co. v. Trust Co., 15 N.M. 634, 110 P. 856; Bank v. Doherty, 37 Wash. 32, 79 P. 486; McCoy v. Brooks, 9 Ariz. 157, 80 P. 365; Smith v. Arizona Eng. Co., 21 Ariz. 624, 193 P. 303.)

J. R. Smead, for Respondents.

The reference to the verified complaint which is made in the affidavit entitled such verified complaint to be considered as a part of the affidavit. (32 Cyc. 475.)

A trial court has control over its own process, may order that a summons which has been returned and filed be withdrawn and again served upon a defendant, or may order an entirely new summons to be served, as justice and the exigencies of the case may demand. (Ridenbaugh v. Sandlin, 14 Idaho 472, 125 Am. St. 175, 94 P. 827; Harpold v. Doyle, 16 Idaho 671, 102 P. 158; Empire Mill Co. v. District Court, 27 Idaho 383, 149 P. 499.)

There must be irregularities shown to exist, as in the time of the sale, the place, interference with or suppression of competitive bidding, a sale out of view of the bidders, or like matters or conduct, coupled with a grossly inadequate price, before an execution sale will be set aside. ( O'Callaghan v. O'Callaghan, 91 Ill. 228; Smith v. Randall, 6 Cal. 47, 65 Am. Dec. 475; Lacy v. Gunn, 144 Cal. 511, 78 P. 30; Anglo-Californian Bank v. Cerf, 142 Cal. 303, 75 P. 902; Johnson v. Johnson, 66 Wash. 113, 119 P. 22; Farmers' Loan Co. v. Oregon Pacific R. R. Co., 28 Ore. 44, 40 P. 1089; Dazet v. Landry, 21 Nev. 291, 30 P. 1064; Herr v. Broadwell, 5 Colo. App. 467, 39 P. 70.)

BUDGE, J. Lee, J., concurs, Rice, C. J., and Dunn, J., concur in the conclusion. McCarthy, J., did not sit at the hearing and took no part in the opinion.

OPINION

BUDGE, J.

This action was brought by respondents to recover $ 718 for legal and professional services rendered by them to appellant.

From the record it appears that on April 28, 1917, a verified complaint was filed herein, summons was issued, and certain capital stock of the Ames Wholesale Grocery & Supply Company, owned by appellant, was attached; that on May 9, 1917, the sheriff filed the summons with the clerk, with his return thereon that after due and diligent search and inquiry he was unable to find appellant in Ada county, state of Idaho; that an alias summons was issued; that respondents filed an affidavit, dated April 30, 1917, for service of summons on appellant outside of the state, and the court ordered service to be made upon appellant outside of the state and at his residence at or near Creswell, Oregon; that the alias summons was mailed on May 15, 1917, to the sheriff of Lane county, Oregon, for service, by whom it was lost; that on July 21, 1917, the court, on motion of respondents supported by affidavit of such loss, ordered the clerk to issue a second alias summons; and that this second alias summons was duly served upon appellant by the sheriff of Lane county, Oregon, on July 23, 1917, by delivering to and leaving with said appellant a copy of the alias summons attached to a copy of the complaint.

Appellant having failed to appear and answer the complaint, and the time allowed by law for answering having expired, his default was entered September 8, 1917, and judgment was rendered against him September 11, 1917, for $ 718 and costs. Execution was thereupon issued, and the stock theretofore attached was sold on September 20, 1917, to respondents, for $ 50.

On April 26, 1918, appellant, purporting to appear specially, moved the court to quash the summons and set aside the pretended service thereof, to vacate the default and set aside the judgment, and to set aside the sale made under execution. This motion was supported by the affidavit of appellant to the effect that the stock in question was worth more than $ 750, and that the certificate of stock had been placed by appellant in the hands of respondents in connection with legal services theretofore rendered to him by them, with which was submitted the answer and cross-complaint of respondents in an action in the district court wherein the Ames Wholesale Grocery & Supply Company was plaintiff and the appellant and respondents herein were defendants, in which respondents by way of cross-complaint in conversion allege "that the value of said stock and the said accumulated dividends and earnings thereof at the time of the conversion thereof by said corporation was the sum of $ 1,450."

Appellant's motion was overruled by the court on October 7, 1918, from which action this appeal is taken.

Appellant makes three assignments of error, and contends that the order of the court that service be made upon appellant outside the state had reference to the original summons, that the order for the issuance of the second alias summons was not made within a reasonable time after the affidavit for service of summons outside the state, that with respect to the existence of a cause of action the order...