Elstermeyer v. City of Cheyenne

• Decision Date: 19 August 1941
• Docket Number: 2198
• Citation: 57 Wyo. 256,116 P.2d 231
• Parties: ELSTERMEYER v. CITY OF CHEYENNE ET AL
• Court: Wyoming Supreme Court

116 P.2d 231

57 Wyo. 256

ELSTERMEYER v. CITY OF CHEYENNE ET AL

No. 2198

Supreme Court of Wyoming

August 19, 1941

APPEAL from the District Court, Laramie County; H. R. CHRISTMAS Judge.

Action to set aside sale of realty by Ida Elstermeyer against the City of Cheyenne and Edwin W. Baron. From a judgment in favor of the plaintiff, the defendants appeal.

Modified and affirmed.

For the appellants, there was a brief by Walter Q. Phelan and Edwin W. Baron of Cheyenne, and oral argument by Mr. Phelan.

The statutes provide a method for attacking judgments after the term at which judgment was rendered. Sections 89-2302, 2303 and 2307, R. S. But it must be shown that there is a valid defense. A proceeding may be brought in equity, if it be alleged and proven that plaintiff is without a remedy at law has a meritorious defense; has made a valid tender and that the judgment is unconscionable. Bankers Life Company v Robbins (Nebr.) 73 N.W. 269; Flynn v. Vandehslice (Okla.) 44 P.2d 971; Buco v. Brown, 14 P. 366; 15 R. C. L. Sec. 192, page 737; Hodkady v. Jones (Okla.) 56 P. 1054; Black on Judgments, 2d Ed., Sec. 376; Ray v. Carr, 107 F.2d 238; Wagner v. Johnston (Colo.) 247 P. 1058; Worrall v. Chase (Ia.) 123 N.W. 338; Hinton v. White, 3 Wyo. 754. As to tender, see Freeman on Judgments, Sec. 1193; Gregory v. Ford (Cal.) 73 Am. Dec. 639; Huber v. Delong, 54 Wyo. 240. As to bona fide purchasers, see 15 R. C. L. 224; 34 C. J. 440; Pettis v. Johnston (Okla.) 190 P. 692. Unless brought in the case in which the decree was rendered, the suit is a collateral attack. 35 C. J. 111; Closson v. Closson, 30 Wyo. 1; Poston v. Delfelder, 39 Wyo. 163; Moore v. Parson (Ohio) 120 N.E. 305; Penton v. Investment Co., 131 So. 19; People v. McFadden (Calif.) 77 P. 998. Want of jurisdiction must appear affirmatively from the face of the record. 34 C. J. 548; Freeman on Judgments, 5th Ed., p. 819; Miller v. Ahneman (Minn.) 235 N.W. 622; Union Investment Company v. Hunt, 59 S.W.2d 1040; Holt v. City of Cheyenne, 22 Wyo. 227; Emelle v. Spinner, 20 Wyo. 515; State v. District Court, 33 Wyo. 312; Whittaker v. Bank, 32 Wyo. 268. The policy of the law is to give judgments absolute verity. Sec. 22-1523, R. S. A purchaser under a void judgment is entitled to a return of the purchase price with interest. 35 C. J. 114; 42 C. J. 264; Section 22-1539, R. S. 1941; Huber v. Bank, 32 Wyo. 370; Cameron v. Quong (Calif.) 165 P. 961.

For the respondent, there was a brief and oral argument by Ray E. Lee of Cheyenne.

The action involves the validity of a decree foreclosing a lien for street improvements. Plaintiff was not made a party to the foreclosure proceedings and is not bound thereby. Honeycutt v. Nyquist, Petersen & Co., 12 Wyo. 183. The court did not acquire jurisdiction of the plaintiff. Ohlman v. Company, 120 S.W. 1155; Schoenfeld v. Bourne, 123 N.W. 537; Hubner v. Reickhoff, 72 N.W. 540; Detroit v. City Railroad Company, 54 F. 1; Whitney v. Masemore, 89 P. 914; Flynn v. Tate, 228 S.W. 1070. The attempted service by publication was void. Morris v. Tracy, 48 P. 571. There was no affidavit. Section 89-818, R. S. An affidavit was necessary. Sec. 89-818, R. S. 1931. Thompson v. Tanner, 287 F. 980; Carr v. King, 169 N.W. 133; Grouch v. Martin, 27 P. 985; Adams v. Hosmer, 56 N.W. 1051; Pitkin v. Flagg, 97 S.W. 162; Bank v. Latimer, 149 P. 1099; Coughran v. Markley, 87 N.W. 2; Cohn v. Lawrence, 120 P. 223; Phillips v. Lawrence, 120 P. 222; Felts v. Boyer, 144 P. 420; Anderson v. Anderson, 82 N.E. 311; Harris v. Barnes, 291 N.W. 271; Hassett v. Durbin (Nebr.) 271 N.W. 861. The proceedings did not conform with Section 22-1534, R. S. There was no appraisement. Sections 89-2931-2932, 2933, R. S. 1931; Smith v. Cockrill, 18 L.Ed. 973; Maple v. Nelson, 31 Iowa 322; Gardner v. Sisk, 54 P. 506; Gantly v. Ewing, 11 L.Ed. 794; Commercial Bank v. Western Reserve Bank, 11 Ohio 444; Bank v. Galbreath, 225 P. 97; Hewitt v. Voils et al., 296 P. 447; Cuff v. Koslosky, 25 P.2d 290; Miller v. Am. Bank, 40 P.2d 1074; Bell v. Trosper, 77 P.2d 544. The court never acquired jurisdiction, there having been no service. 34 C. J. 270. The judgment is consequently void. Bank v. Steinhoff, 11 Wyo. 290; Boulter v. Cook, 32 Wyo. 461; Bank of Commerce v. Williams, 52 Wyo. 1; Burnett v. Giblin, 38 Wyo. 421. Defendant Baron is charged with notice. 66 C. J. 1128; Davis v. Minnesota Baptist Convention, 45 Wyo. 148; Warden v. Ratterree, 9 P.2d 215. The Baron deed carries notice of defects. Mersman v. Werges, 112 U.S. 139; Angle v. Northwestern Life Insurance Company, 92 U.S. 530. Plaintiff's only remedy is in equity. Hardin v. Card, 17 Wyo. 210; 34 C. J. 438; Bentley v. Jenne, 33 Wyo. 1; Pregal v. Stickney, 34 Wyo. 324. When a party alters a deed after its execution and delivery, as was done in this case, the instrument is thereby invalidated. Waggoner v. Clark, 127 N.E. 436; Hoskins v. Gas Company, 240 S.W. 377; Barton Savings Bank & Trust Company v. Stephenson, 89 A. 639; Gray v. Williams, 99 A. 735; Barnhart v. Little et al., 185 S.W. 174; First National Bank v. Hoover, 218 P. 1003; King v. DeTar, 199 N.W. 847; First National Bank v. Ketchum, 172 P. 81. This applies even if the alteration was made to correct a mistake. Merritt v. Dewey, 75 N.E. 1066; Murray v. Graham, 29 Iowa 520; Edington v. McLeod, 124 P. 163; Owings v. Arnot, 33 Mo. 406; Ostrander v. Messmer, 223 S.W. 438; Brown v. Straw, 6 Nebr. 536; Pereau v. Frederick, 22 N.W. 235; Clark v. Eckstein, 22 P. 507; Taylor v. Taylor, 12 Lea (Tenn.) 714; Otto v. Halff, 34 S.W. 910; Dobyns v. Rawley, 76 Va. 537; Koons v. St. Louis Car. Co., 101 S.W. 49. In the case of Hunt v. Gray, 36 N. J. L. 227, it was contended that a party to an instrument may alter it to conform to the agreement actually made between the parties. The court held that the contention was incorrect. The same principle was followed in Newman v. King (Ohio) 43 N.E. 683, also in Hess v. Hodges, 78 So. 85; Moelle v. Sherwood, 148 U.S. 21; Hurt v. Stout, et ux., 181 P. 623. The judgment of the trial court should be affirmed.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

This is a direct appeal proceeding brought by the City of Cheyenne, a municipal corporation, and Edwin W. Baron, to review a judgment of the district court of Laramie County given in a cause pending in said court wherein Ida Elstermeyer was plaintiff and the parties above named were defendants. The facts required to be set forth in order to understand the matter may be briefly summarized as follows: The plaintiff, whose name at that time was Ida Anderson, purchased Lot 8 in Block 303 of the City of Cheyenne some 38 years before August 8, 1940, the date when the case at bar was tried in the court aforesaid. Her husband died, and in August, 1917, she remarried, her second husband's name being William Elstermeyer. However, the property aforesaid was allowed to stand on the Laramie County records in the name of Ida Anderson.

On September 29, 1925, the City of Cheyenne aforesaid filed a lien upon said property for certain street improvements made by it adjoining this land and in due course instituted a foreclosure suit in said court to recover the amount claimed by the defendant municipality to be due it on account of the assessment and lien proceedings just mentioned. This foreclosure suit was begun September 28, 1935, and the defendant, so far as here material, was designated as one "Ida Elestermeyer". Neither Ida Anderson nor Ida Elstermeyer were named as parties. Meanwhile, some time in the year 1928 or 1929, the plaintiff had removed from the State of Wyoming to the State of California and became a resident there in the city of Santa Ana, her street address being 912 South Cypress Avenue therein.

Constructive service upon the plaintiff was accordingly resorted to by the city aforesaid in the foreclosure suit above mentioned. Among the now pertinent sections relating to such service are the third provision of Section 89-701, R. S. 1931, reading:

"Actions for the following causes must be brought in the county in which the subject of the action is situate, except as provided in the next two sections:

* * *

3. For the sale of real property under a mortgage, lien or other incumbrance or charge;"

Section 89-817, subdivision "1" and "4"

"Service by publication may be had in either of the following cases:

1. In actions under the first three sections of article 7 of this chapter, when the defendant resides out of the state, or his residence cannot be ascertained;

* * *

4. In actions which relate to, or the subject of which is real or personal property in this state, when a defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the state, or a foreign corporation, or his place of residence cannot be ascertained;"

Section 89-819, whose language is:

"Before service by publication can be made, an affidavit of the party, his agent or attorney, must be filed showing that service of a summons cannot be made within this state, on the defendant to be served by publication, and that the case is one of those mentioned in § 89-817; and when such affidavit is filed, the party may proceed to make service by publication,"

Section 89-818, which reads:

"In any case in which service by publication is made under the provisions of the preceding section, when the residence of a defendant is known, it must be stated in the publication immediately after the first publication the party making the service shall deliver to the clerk copies of the publication, with the proper postage, and the clerk shall mail a copy to each defendant,...